Member Article

With COVID-19 vaccines fully available in the United States, employers are approaching work-from-home requests differently than they were a year ago. Dinsmore labor and employment attorneys Ashley Pack, Crystal Spivey Wildeman and Aly St. Pierre wrote about the topic in Best Lawyers: The Litigation Issue. An excerpt is below.

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?

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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. 

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.

Read the full article here.