During the pandemic, many employers have permitted employees to work remotely/telework in an effort to slow the spread of COVID-19. As the incidence of the virus has subsided in certain geographic areas, employers have begun to reopen their worksites and have required employees to return to their physical place of work. In doing so, these employers have been met with requests from certain employees that they be permitted to continue working remotely, leading to the question of whether the employer is required to grant such a request. In Technical Assistance Questions and Answers issued on September 8, the U.S. Equal Employment Opportunity Commission (“EEOC”) answered the question with a qualified “NO.”
Physical presence at the work site is considered an “essential function” of many jobs, which, in some cases, was excused by employers during the pandemic. The EEOC’s Technical Assistance document states clearly that even if
an employer is permitting telework to employees because of COVID-19 and is choosing to excuse an employee from performing one or more essential functions, then a request—after the workplace reopens—to continue telework as a reasonable accommodation does not have to be granted if it requires continuing to excuse the employee from performing an essential function. The ADA [(Americans with Disabilities Act)] never requires an employer to eliminate an essential function as an accommodation for an individual with a disability.
According to the EEOC, the temporary suspension of performance of an essential function of the job during the pandemic “does not mean that the employer permanently changed a job’s essential functions, that telework is always a feasible accommodation, or that it does not pose an undue hardship.”
While it appears clear that employers are permitted to reinstitute the requirement that employees return to the worksite, the EEOC’s Technical Assistance does not suggest that all requests for continued telework can be summarily denied. Not surprisingly, the EEOC states that, while an employer is not restrained from restoring all of the employee’s essential functions when it restores a prior work arrangement, it must still “evaluat[e] any requests for continued or new accommodations [including telework] under the usual ADA rules.” The text of the EEOC’s Technical Assistance relating to continued teleworking can be read at section D.15 in the “Reasonable Accommodation” section of What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.
We are not surprised that the EEOC has taken this position on continued teleworking. Employers can expect employees to return to the worksite upon request but must engage in the “interactive process” when faced with a disability-related request for an accommodation and must be prepared to articulate a business rationale for making physical presence at work an ”essential function,” especially when the employee was permitted to work remotely during the pandemic.
