As the pandemic lingers on, employers are facing challenges as they bring employees back to the workplace. Some employees may not want to return because they fear contracting the virus in the workplace. Others may have concerns about returning to the office because they have a disability that increases the risk of severe illness if they contract COVID-19. Yet, others may simply prefer working from home for purely personal reasons unrelated to COVID-19. Employers have a difficult task in evaluating when they are obligated under the Americans with Disabilities Act (ADA) to allow employees to continue to working remotely.
Fortunately, last last year employers received much needed guidance from the Equal Employment Opportunity Commission (EEOC) that will assist in analyzing whether an employer must continue to permit employees to work from home. In its latest guidance, the EEOC explained that employers are not required to continue to allow employees to telework simply because telework was previously allowed in response to the pandemic. The EEOC explained that “[t]he 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 protecting their safety 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.” While employers do not have a duty under the ADA “to refrain from restoring all of an employee’s essential duties at such time as it chooses to restore the prior work arrangement,” employers still must evaluate any requests for a new accommodation or continued accommodation under the traditional ADA rules. In other words, employers must engage in the interactive process to determine whether they are able to accommodate an employee’s request for accommodation, including telework. However, allowing past telework in response to COVID-19 does not require an employer to continue telework based on past precedent alone.
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