On September 8, 2020, the Equal Employment Opportunity Commission (EEOC) released updated guidance stating that businesses will not be required to automatically allow remote work as a reasonable accommodation under the Americans with Disabilities Act (“ADA”) as the threat of COVID-19 dissipates. You may see the guidance here: https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.
This guidance applies to those employers covered by Title I of the ADA. Title I applies to private employers with 15 or more employees. It also applies to state and local government employers, employment agencies, and labor unions. All nondiscrimination standards under Title I of the ADA also apply to federal agencies under Section 501 of the Rehabilitation Act.
Under Title I, employers must provide qualified employees with disabilities with reasonable accommodations to do their jobs, except when such accommodation would cause an undue hardship. An adjustment that eliminates an essential function or fundamental duty of a position is not considered a reasonable accommodation.
While there were many fears and concerns that arose from the COVID-19 pandemic, one of the concerns for employers was, if they allowed employees to temporarily abdicate a certain essential function of their position while working remotely, the employer might not be able to later require that employee to re-assume that responsibility when “normal” working conditions return. Thankfully, The EEOC addressed this exact issue and said, “The fact that an employer temporarily excused performance of one or more essential functions when it closed the workplace and enabled employees to telework for the purpose of keeping them safe from COVID-19, or otherwise chose to permit telework, does not mean that the employer permanently changed a job’s essential functions, that telework is always a feasible accommodation, or that it does not pose an undue hardship.” The EEOC went on to say that whether or not remote work is a reasonable accommodation remains a fact-specific determination and the usual ADA rules still apply.
Additionally, the EEOC provided some interesting guidance regarding previously denied telework. According to the guidance, employers should keep in mind that the EEOC issued guidance that suggests a worker’s ability to work remotely during COVID-19 may be relevant in situations where an employee’s request for remote work was previously denied prior to COVID-19. There, the EEOC said “In this situation, for example, the period of providing telework because of the COVID-19 pandemic could serve as a trial period that showed whether or not this employee with a disability could 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.”
While this guidance is helpful, it does not provide total clarification on many of your pressing questions, but it does hopefully help add some pertinent information to any difficult upcoming decisions you may face.
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About Harrison Oldham
Harrison grew up in Mansfield, Texas. He attended Texas A&M University for his bachelor’s degree, where he met his wonderful wife, Kelsey. After graduating magna cum laude from Texas A&M, he attended SMU Dedman School of Law, graduating with honors in 2012. Today, Harrison and his wife live in Dallas, Texas with their son, Teddy.
Since graduating from SMU Law, Harrison has worked exclusively in the field of business law. He has spent time in private practice and in-house, working with clients of every size; from single person startups to Fortune 250 companies. Today his practice focuses on serving the diverse needs of businesses and individuals throughout Texas. You can learn more about Harrison by visiting his website, at: http://