Key Takeaways

• The EEOC has clarified that a temporary shift to a telework environment during the COVID-19 pandemic does not force the employer to accept all telework requests in the future

• Determining whether a telework arrangement makes sense remains heavily fact-specific

• Employers should still be mindful when evaluating accommodation requests and should continue to participate in the interactive process as required by the ADA

The EEOC has issued helpful guidance on expectations for employers receiving remote working requests in the future, clarifying that an employer’s temporary shift to a remote environment does not create an obligation to accept future remote working requests.

The Americans with Disabilities Act (ADA) mandates that employers provide qualifying employees with “reasonable accommodations” that will allow them to do their job without causing an “undue hardship” to the company. An undue hardship means a “significant difficulty or expense.”

The COVID-19 pandemic has raised questions about whether telecommuting (or working remotely) qualifies as a “reasonable accommodation” under the ADA. Similarly, the pandemic has raised questions about how allowing an employee to telecommute during the height of the pandemic will affect continued or new requests to telecommute going forward.

While allowing employees to telework may sometimes fit the bill of a “reasonable accommodation,” the EEOC’s latest guidance makes clear that a temporary shift to a telework environment during the COVID-19 pandemic does not force the employer to accept all telework requests in the future. Further, the EEOC explained that the ADA also does not require employers to continue to allow telework for its current employees. To the extent that an employer is permitting its employees to telework and is excusing an employee from performing one or more essential job functions in light of the pandemic, then an employee’s request to continue to telework after the workplace reopens as a “reasonable accommodation” does not have to be granted if it requires continuing to excuse the employee from performing an essential job function. Simply put, the ADA never requires an employer to eliminate an essential job function as an accommodation for an individual with a disability.

The EEOC clarified that an employer’s decision to enable its employees to telework temporarily for health and safety reasons does not mean that the employer permanently changed the job’s essential functions, that telework is always a feasible or reasonable accommodation, or that allowing telework does not pose an undue hardship to the employer. Upon reopening the workplace, the employer has no obligation under the ADA to refrain from restoring all of an employee’s essential duties at the time it chooses to restore the prior work arrangement, and then evaluating any future requests for continued or new accommodations under the usual ADA rules. Determining whether a telework arrangement makes sense remains heavily fact-specific.

Employers should continue to comply with the usual ADA rules and should be mindful of their requirement to participate in the interactive process when a qualifying employee makes an accommodation request. The EEOC advised that flexibility by both employers and employees is important in determining if some accommodation is possible under the specific circumstances. The EEOC also acknowledged that it is relevant to consider the circumstances of the COVID‑19 pandemic when determining if an accommodation request poses an undue hardship to the company. The EEOC stated that if a particular accommodation poses an undue hardship, then employers and employees should work together to determine if there may be an alternative that would not pose such problems.

If you have any questions about how this guidance impacts your business, please contact:

• Cali L. Chandiramani
• Caroline J. Berdzik
• Peter J. Woo
• Kristin Klein Wheaton
• Or another member of the Employment and Labor practice