One of the lingering effects of COVID-19 is the changed landscape in many workplaces.  During the height of the pandemic, businesses in certain industries, either voluntarily or involuntarily, temporarily moved much, if not all, of their employees to remote work from home with mixed reviews from both the employer and employee perspectives.  Some employers found increased productivity and performance, while others experienced the opposite.  Employees have expressed support for remote work citing reasons of convenience and flexibility, while still others prefer to be on-site and away from the distractions at home.  Regardless of opinions on this issue, one reality with which employers must contend is the impact of the telework period during the pandemic on how current and future requests for remote work, as an accommodation for a medical condition, are to be addressed.

The EEOC has provided critical guidance regarding remote work during the COVID pandemic and its potential impact on the modern workplace.  The EEOC brought its first COVID telework suit against an employer as early as September of 2021, when a Georgia company fired an employee, whose cardiovascular disease heightened her COVID risk, after it denied her accommodation request to continue working from home two days per week.  Under the ADA, reasonable accommodations are adjustments or modifications provided by an employer to enable people with disabilities to enjoy equal employment opportunities.  If a reasonable accommodation is needed and requested by an individual with a disability to apply for a job, perform a job, or enjoy benefits and privileges of employment, the employer must provide it unless it would pose an undue hardship, meaning significant difficulty or expense.  An employer has the discretion to choose among effective accommodations.  Where a requested accommodation would result in undue hardship, the employer must offer an alternative accommodation if one is available.

One example cited by the EEOC regarding how the pandemic has changed the analysis for telework requests assumes that prior to the emergence of the COVID-19 pandemic, an employee with a disability had requested telework as a reasonable accommodation, but the employer denied it because of concerns that the employee would not be able to perform the essential functions remotely.  However, after the COVID-19 crisis had subsided and temporary telework ended, the employee renewed the request for telework as a reasonable accommodation.  This scenario could also apply if someone interviewing for a job that had been performed remotely during the pandemic requests the accommodation of telework going forward.

The EEOC indicates that assuming all the requirements for such a reasonable accommodation are satisfied, the temporary telework experience could be relevant to considering the renewed request.  In this situation, the period of providing telework because of the COVID-19 pandemic could serve as a trial period that showed whether or not an employee with a disability can satisfactorily perform all essential functions while working remotely, and the employer should consider any new requests in light of this information.  As with all accommodation requests, the employee and the employer should engage in a flexible, cooperative interactive process going forward if this issue does arise.

It is important to recognize that the ADA does not require employers to remove essential functions of the job or lower performance and productivity standards.  For this reason, it is very important that employers ensure their job descriptions are up to date with an explanation of specific productivity requirements, if applicable, and a clear delineation of essential vs. non-essential job functions.

Moreover, several factors should be considered in determining the feasibility of working at home, including the employer's ability to adequately supervise the employee and whether any duties require use of certain equipment or tools that cannot be replicated remotely.  Other critical considerations include whether there is a need for face-to-face interaction and coordination of work with other employees; whether in-person interaction with outside colleagues, clients, or customers is necessary; and whether the position in question requires the employee to have immediate access to documents or other information located only in the workplace.

If the employer determines that some job duties must be performed in the workplace, then the employer and employee need to decide whether working part-time at home and part-time in the workplace will meet both of their needs.  For example, an employee may need to meet face-to-face with clients as part of a job, but other tasks may involve reviewing documents and writing reports.  The meetings might need to occur in the workplace, but the employee may be able to review documents and write reports from home.

Finally, all requests for accommodation under the ADA must be reviewed and analyzed on a case-by-case basis.  Please contact Dan Lieberman, Esq. at dlieberman@c-wlaw.com or (717) 390-3020 to discuss any questions or concerns pertaining to this important topic.

DISCLAIMER

The information in this article is provided for general informational purposes only and may not reflect the current law in your jurisdiction.  By reading this article, you understand that there is no attorney-client relationship between you and Cipriani & Werner, P.C., or any of our attorneys.  No information contained in this article should be construed as legal advice from Cipriani & Werner, P.C. or the individual authors.