During the COVID-19 pandemic, the Equal Employment Opportunity Commission (EEOC) has published guidance addressing various issues related to employment law and COVID-19. On September 8, 2020, the EEOC posted updates, which can be found here: EEOC FAQs. For purposes of this article, the focus will be on the issues surrounding the EEOC’s guidance regarding telework and the Americans with Disabilities Act (ADA).
Per the ADA, employers are prohibited from discriminating against qualified individuals because of a disability and they must provide a reasonable accommodation to individuals that cannot perform one or more essential functions of their position because of known limitations associated with a disability. A reasonable accommodation is a change in the work or workplace that allows an individual with a disability to perform his/her job. However, employers are not required to provide an accommodation if doing so would cause an undue hardship on the business. Moreover, a reasonable accommodation does not include an employer eliminating or reallocating an essential function of a job. The balancing of a reasonable accommodation and undue hardship requires employees and employers to engage in an interactive process to determine the employee’s disability and the best way, if possible, the employer can assist the employee.
Before the pandemic, telework as an accommodation under the ADA was one issue that routinely arose between employees and employers. Whether telework is a reasonable accommodation depends on the specific facts of each case; however, pre-pandemic, an employer could typically insist that regular attendance at the worksite was a requirement of the job and, therefore, an essential job function. The EEOC’s September 8, 2020 updated guidance reiterated the importance of considering the factual circumstances surrounding each telework request but clearly stated that telework as an accommodation is not automatic.
With several employees being forced to work from home during COVID-19, the issue regarding telework as a reasonable accommodation has been reexamined, specifically, what it looks like when businesses fully reopen. The EEOC, with its recent guidance, has provided that post-pandemic telework is not automatic with regards to ADA reasonable accommodations. The EEOC stated that “[i]f there is no disability-related limitation that requires teleworking, then the employer does not have to provide telework as an accommodation. Or, if there is a disability-related limitation but the employer can effectively address the need with another form of reasonable accommodation at the workplace, then the employer can choose that alternative to telework.”
Moreover, the fact that an employer is currently permitting employees to telework because of COVID-19 and is also excusing an employee from performing an essential function of his/her job cannot be used against the employer. The EEOC stated that allowing employees to telework now does not mean 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.” Accordingly, an employer can restore all essential job functions for a job and then evaluate whether it can allow telework as a reasonable accommodation. As stated above, the ADA never requires an employer to eliminate essential job functions of a job. However, the EEOC did state that the time an employee spent working from home during the COVID-19 pandemic could be relevant in determining whether the employee can satisfactorily perform all his/her essential job functions. The EEOC compared this time to a “trial period” regarding working remotely that employers should factor into their accommodation decisions post-pandemic.
One thing that is noticeably absent from the EEOC guidance is the actual determination of the essential functions of a job. EEOC regulations define essential functions as “fundamental job duties of the employment position the individual with a disability holds or desires.” 29 C.F.R. § 1630.2(n)(1)). Whether a job function is essential is determined by the employer but may be refuted in litigation. Circling back to attendance requirement pre-COVID-19, the “trial period” has called into question whether employers can still claim on-site attendance is an essential job function. Obviously, the determination is fact specific and will vary depending on each situation. However, it is an issue worth following as state and local leaders lift COVID-related restrictions and post-pandemic business reopens.