Phoning It In

It’s not easy for employers to weigh requests from employees to work from afar, even in the wake of the pandemic. Considerations include COVID-19, vaccinations, the Americans with Disabilities Act and the nature of the job itself.

Employer Considerations for Teleworking
Ashley C. Pack

Ashley C. Pack, Crystal S. Wildeman and Alyson M. St. Pierre

September 24, 2021 07:00 AM

With COVID-19 vaccines now readily available for most adults in the United States, employers are facing legal uncertainty in the form of whether to accommodate continued remote-work requests. Must they provide remote working arrangements under the Americans with Disabilities Act, for example?

Under the ADA, a reasonable accommodation includes “modifications or adjustments to the work environment, or to the manner and circumstances under which [a job] is customarily performed, that enable an individual with a disability . . . to perform the essential functions of that position.” Those modifications “may include making existing facilities . . . readily accessible to and usable by individuals with disabilities” or “job restructuring, part-time, or modified work schedules . . . acquisition or modification of equipment or devices . . . and other similar accommodations for individuals with disabilities.”

Remote working arrangements may qualify as a reasonable accommodation unless an employer can show that another accommodation is effective or that permitting remote work creates an undue hardship for the employer. In fact, the Equal Employment Opportunity Commission, since President George W. Bush announced his New Freedom Initiative in February 2001, has emphasized the importance of remote telework for expanding job opportunities for the disabled. Much more recently, regarding remote work as a result of COVID-19, the EEOC has stated:

When public health measures become unnecessary for COVID-19, employers that permit telework for employees to help slow or stop the spread of COVID-19 do not have to continue to grant telework as a reasonable accommodation to employees with a disability who want to continue the arrangement under the ADA. If such employees do not have a “disability-related limitation” that requires telework, employers do not have to grant such requests. Employers also may be able to effectively address such limitations with other reasonable accommodations in the workplace.

For people without a disability, therefore, employers are not required to extend a remote-work arrangement, regardless of what the employee prefers. However, if a worker suffers from a disability and requires an accommodation to perform his or her duties, the protections of the ADA and antidiscrimination laws must be considered.

Like all potential accommodations, whether remote work constitutes a reasonable one is determined case by case and may depend on whether the employee can perform the essential functions of the job from afar or whether physical presence in the workplace is key to the position (i.e., an essential function). The EEOC has noted, for example, that telecommuting may be appropriate for a proofreader or telemarketer with a medical condition, but it would be impossible for a food server or cashier.

Employers must engage with an employee as soon as possible once he or she has made a request to continue working remotely based on a medical condition. The EEOC advises that companies and workers “are encouraged to use interim solutions” that enable the employee to keep working as much as possible, further urging both parties to be “creative and flexible” in devising and providing reasonable accommodations.

Phoning It In Article Imagery

One recent case from the District Court of Massachusetts offers insight into how one court viewed a similar situation. In Peeples v. Clinical Support Options, Inc., the plaintiff suffered from severe asthma, which made them more vulnerable to COVID-19. When the employer began to bring staffers back to the office, the plaintiff requested to continue working from home.

The employer granted an initial extension of four weeks but ultimately denied the plaintiff’s continued requests, based on the employer’s requirement that all individuals in the plaintiff’s position work in person. The plaintiff sued, seeking injunctive relief, which the court granted, finding that the plaintiff was “entitled to telework as a reasonable accommodation pursuant to the ADA” for an additional 60 days on top of the extension. The court also encouraged both sides to discuss a mutual resolution.

Material to the court’s analysis were the plaintiff’s ability to perform all essential functions remotely and the employer’s failure to engage the plaintiff individually. Interestingly, the court applied a less stringent and COVID-specific standard when deciding the plaintiff’s likelihood of proving that moderate asthma was a disability. The court found that the plaintiff was likely to establish asthma as a disability given the totality of the circumstances related to the pandemic and the plaintiff’s evidence that, because of asthma, they were at higher risk for serious illness or even death if they were to contract COVID-19. Although it’s too early to tell what sort of impact this opinion may have on pandemic-related reasonable-accommodation claims, other courts may take a similar approach in the future.

Telecommuting may be appropriate for a proofreader or telemarketer with a medical condition, but it would be impossible for a food server or cashier.”

Just because an employee has a disability, however, doesn’t mean the employer is legally required to provide any accommodation of the employee’s choice. An employer can deny a staffer’s request to continue working remotely when it creates an undue hardship, defined as “an action requiring significant difficulty or expense,” based on factors including the nature and cost of the accommodation, the overall financial resources of the facility, the overall financial resources of the employer, and the nature of the employer’s operations. Courts have ruled that certain telework arrangements were not reasonable in situations when a job involved teamwork under supervision, access to classified or confidential information, or when the quality of the work would be substantially reduced.

By contrast, when the telework request was limited to a finite period, such as a maternity leave, or when the employee was able to perform all essential functions of the job remotely, telework was considered a reasonable accommodation worthy of consideration by the employer.

Given the current, ever-changing environment and the need for individualized review of accommodation requests, employers should consult with counsel when considering telework as a potential accommodation. Employers might also consider revisiting and updating employee job descriptions to clearly state the essential functions of each position. Having updated and clearly stated essential functions will aid in the analysis of many accommodation requests—and ensure that your workers are doing the best job they can, wherever they happen to be.

Ashley Pack, Dinsmore's office managing partner in Charleston, West Virginia, has significant experience representing employers in a variety of labor and employment matters, including employment litigation, sexual harassment investigations, employment advice and trainings, and labor issues. She leverages a thorough knowledge of employment law to help steer clients through myriad challenges, having represented clients in the banking, health care, retail, energy and natural resources.

Crystal Wildeman, a partner in Dinsmore’s Evansville, Indiana office, represents employers in Indiana, Illinois, and Kentucky in a variety of employment and business disputes. Crystal routinely appears in courts and administrative agencies on behalf of employers in hearings, arbitrations, mediations, and trials. Crystal also provides counseling services to human resources professionals, boards, and management on employment-related issues. She frequently speaks and presents on defensive strategies and proactive measures to assist business owners in avoiding disputes and litigation.

Aly St. Pierre, an associate in Dinsmore’s Indianapolis, Indiana office, represents employers throughout Indiana in an array of business and employment disputes, including employment discrimination, wage and hour, non-competition, and trade secrets litigation. Aly also routinely counsels employers on employment-related issues and legal developments.

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