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.

Related Articles

Compelled to Compete

by Ashish Mahendru

Courts and legislatures—and now the White House—are taking an increasingly dim view of noncompete employment agreements, a development the pandemic has quickened. What can employers do to protect their confidential information?

Protection for Employers Beyond Noncompetes

Look Out Below

by Mary Jo Larson

Employee 401(k) and other pension plans that include company stock can be a financial minefield. What’s a responsible fiduciary to do to lessen the risk of a plummeting share price—and the risk of a subsequent “stock-drop” lawsuit from aggrieved workers?

Navigating Employee 401(k) and Pension Plans

Can Employers Legally Require Their Employees to Get a COVID-19 Vaccine?

by Candace E. Johnson

With the COVID-19 vaccine more widely available now, many employers are asking if they can require employees to receive the vaccine and what risks are involved in doing so.

Can Employers Legally Require Vaccines?

Newly Launched COVID-19 Litigation Project Offers Open Access To Pandemic-Related Court Judgments From Over 70 Countries

by Sara Collin

A worldwide database of COVID-19 cases is uniting more than 70 countries as judges, lawmakers and lawyers continue to navigate pandemic related litigation and the ways in which it’s evolving amid year three.

COVID-19 Worldwide Litigation Project

Discovery in the Time of COVID-19

by H. Barber Boone

The pandemic has affected the vital process of legal discovery in ways both good and bad. Which changes are likely to become widely accepted in the years ahead?

The Impact of COVID-19 on E-Discovery

The Next Chapter

by Patrick M. Shelby

Among its uncountable other disruptions, the pandemic upended U.S. bankruptcy procedures. Congressional relief, legislative changes, amended legal provisions: What lies ahead for those looking to file?

COVID-19's Impacts on Bankruptcy Procedures

With Reservations

by Justin Smulison

Is vaccine liability on the menu for restaurant owners in 2021?

Vaccine Liability for Restaurant Owners


by Joanna Barsh, Lauren Brown, and Kayvan Kian

Burden, blessing, or both?


Paid Leave

by Best Lawyers

Eight attorneys from across the country weigh in.

Paid Leave

The Employment Pandemic

by Meredith Caiafa and Sarah Greene

The pandemic has had far-reaching effects on employment law since it officially took hold in 2020, but the litigation and lawmaking surrounding it are mutating faster than the variants. Here’s how lawmakers and businesses can keep up.

Employment Law During COVID-19

Navigating the New Normal

by Jody E. Briandi

The pandemic has upended many law firms’ internal culture and their lawyers’ work habits, in many ways for the better. As we approach 2022, how can we consolidate those positive effects to transform the practice of law (and our personal lives) for the better?

Work Habits Affected by the Pandemic

Fake Vaccination Card Crackdowns Impact Criminal Law

by Justin Smulison

Those who are making, selling and buying fake COVID-19 vaccine cards are facing federal and state charges.

Fake Vaccine Cards Impact Criminal Law

Look for the Zoom Label

by Anne R. Yuengert and Matthew C. Lonergan

Will the virtual platforms that got such a boost during the pandemic replace how you interact with your employees, unions, and lawyers?

Virtual Platforms Replacing Work Interactions

Busting a Trust

by Joseph Marrs

The rules governing trusts and asset distribution are often much more flexible than many might assume. Here’s a primer.

Rules Governing Trusts and Asset Distribution

Meeting Halfway

by Julia B. Meister

To resolve family and business disputes including wills, trusts, estates and more, mediation is often a more effective, gentler and cheaper option than litigation.

Mediation to Resolve Wills, Trusts, Estates

What Does Workplace Harassment Look Like in 2021?

by Victoria E. Langley

The COVID-19 pandemic reshaped the U.S. workforce. But has it changed harassment on the job?

Workplace Harassment in 2021

Trending Articles

The Real Camille: An Interview with Johnny Depp’s Lawyer Camille Vasquez

by Rebecca Blackwell

Camille Vasquez, a young lawyer at Brown Rudnick, sat down with Best Lawyers CEO Phillip Greer to talk about her distinguished career, recently being named partner and what comes next for her.

Camille Vasquez in office

Announcing the 2022 Best Lawyers® in the United States

by Best Lawyers

The results include an elite field of top lawyers listed in the 28th Edition of The Best Lawyers in America® and in the 2nd Edition of Best Lawyers: Ones to Watch in America for 2022.

2022 Best Lawyers Listings for United States

Famous Songs Unprotected by Copyright Could Mean Royalties for Some

by Michael B. Fein

A guide to navigating copyright claims on famous songs.

Can I Sing "Happy Birthday" in Public?

Best Lawyers: Ones to Watch – The Future of Legal Talent Looks Bright

by Justin Smulison

Best Lawyers: Ones to Watch is launching its second edition in the United States, and after talking with both a company leader and esteemed lawyers on the list, the importance of this prestigious list is evident.

Best Lawyers: Ones to Watch in America 2022

Why Cariola Díez Pérez-Cotapos Developed Its Own Legal Tech

by Best Lawyers

Juan Pablo Matus of Cariola Díez Pérez-Cotapos, 2019 "Law Firm of the Year" award for Corporate and M&A Law in Chile, discusses his firm's joint venture with Cognitiva in creating Lexnova, a legal AI system.

Cariola Díez Pérez-Cotapos Interview

Johnny Depp and Amber Heard: The Best Lawyers Honorees Behind the Litigation

by Gregory Sirico

Best Lawyers takes a look at the recognized legal talent representing Johnny Depp and Amber Heard in their ongoing defamation trial.

Lawyers for Johnny Depp and Amber Heard

Choosing a Title Company: What a Seller Should Expect

by Roy D. Oppenheim

When it comes to choosing a title company, how much power exactly does a seller have?

Choosing the Title Company As Seller

Announcing the 2022 "Best Law Firms" Rankings

by Best Lawyers

The 2022 “Best Law Firms” publication includes all “Law Firm of the Year” recipients, national and metro Tier 1 ranked firms and editorial from thought leaders in the legal industry.

The 2022 Best Law Firms Awards

Announcing the 2022 Best Lawyers in Canada™

by Best Lawyers

The results include an elite field of top lawyers listed in the 16th Edition of The Best Lawyers in Canada™ and 1st Edition of Best Lawyers: Ones to Watch in Canada.

Announcing the 2022 Best Lawyers in Canada™

Education by Trial: Cultivating Legal Expertise in the Courtroom

by Margo Pierce

The intricacies of complex lawsuits require extensive knowledge of the legal precedent. But they also demand a high level of skill in every discipline needed to succeed at trial, such as analyzing technical reports and deposing expert witnesses.

Cultivating Legal Expertise in the Courtroom

Announcing The Best Lawyers in France™ 2023

by Best Lawyers

The results include an elite field of top lawyers and firms from France.

Blue, white and red strips

Caffeine Overload and DUI Tests

by Daniel Taylor

While it might come as a surprise, the over-consumption of caffeine could trigger a false positive on a breathalyzer test.

Can Caffeine Cause You to Fail DUI Test?

Wage and Overtime Laws for Truck Drivers

by Greg Mansell

For truck drivers nationwide, underpayment and overtime violations are just the beginning of a long list of problems. Below we explore the wages you are entitled to but may not be receiving.

Truck Driver Wage and Overtime Laws in the US

Announcing the 2022 Best Lawyers™ in Australia

by Best Lawyers

The results include an elite field of top lawyers and firms.

Announcing the 2022 Best Lawyers™ in Australi

Announcing The Best Lawyers in Australia™ 2023

by Best Lawyers

The results include an elite field of top lawyers and firms from Australia.

The Best Lawyers in Australia™ 2023

Announcing The Best Lawyers in The United Kingdom™ 2023

by Best Lawyers

The results include an elite field of top lawyers and firms from the United Kingdom.

The Best Lawyers in The United Kingdom 2023