E-Alerts

EEOC Issues New Guidance On ADA Requests To Work From Home

During the COVID-19 pandemic, working from home (“WFH”), or telework, became normalized across many industries and employers. Post-pandemic, many workers resisted returning to in-person work, with some arguing that the Americans with Disabilities Act (“ADA”) entitled them to continue to work from home as a reasonable accommodation for a disability.

Earlier this year, the Equal Employment Opportunity Commission (“EEOC”), in conjunction with the federal Office of Personnel Management, issued formal guidance (“Guidance”) on this topic. The EEOC’s Guidance, published in the form of a “joint technical assistance document,” is designed to help federal agencies determine when employees’ requests for telework accommodations should be granted, modified, or denied.

While the EEOC’s Guidance does not directly address private-sector employment, the Guidance nonetheless provides private employers with important insights into the EEOC’s current positions on these issues.

ADA And Reasonable Accommodation

The ADA prohibits discrimination in employment against otherwise qualified individuals with disabilities. Among other things, the ADA requires employers, upon request, to make “reasonable accommodations” for disabled individuals that would allow them to perform the essential functions of their jobs.

When WHF Qualifies As A Reasonable Accommodation

In the telework context, if an employee (or applicant) with a medically-documented disability claims that an employer failed to provide a reasonable WFH accommodation under the ADA, a court is likely to focus on such factors as: (1) whether the disability prevents the individual from performing the job in the regular workplace; (2) whether the essential functions of the job can be performed from home; (3) whether the employer engaged in an “interactive process” with the employee to explore WFH and/or alternative accommodations; and (4) whether providing the requested accommodation would be an “undue hardship” for the employer.

The new EEOC Guidance confirms that regular, in-person work may be considered an essential function of many jobs, such as interactive jobs and positions that require supervision and teamwork. For such positions, an agency may appropriately take the position that WFH would not be a reasonable accommodation.

The Guidance also notes that “[t]here are three categories of reasonable accommodations” under the ADA:

1. accommodations that enable applicants with disabilities to participate in the application process;
2. accommodations that enable employees with disabilities to perform the essential functions of their positions; and
3. accommodations that enable employees with disabilities to enjoy equal benefits and privileges of employment as are enjoyed by employees without disabilities.

The Guidance stresses that a proposed WFH accommodation must fall within at least one of these categories to be required under the ADA. By contrast, a telework arrangement requested primarily for the employee’s personal benefit or convenience is not considered a reasonable accommodation.

The EEOC’s Guidance also stresses that even after a WFH accommodation has been approved, the agency may assess whether there remains an ongoing need for the accommodation based on individualized factors such as changes in the employee’s medical condition or job responsibilities, the agency’s operational needs, or applicable law. As the Guidance notes, “Reevaluation and modification of a reasonable accommodation are important steps in the on-going interactive process.”

Impact For Private Employers

Although the EEOC’s Guidance is directed specifically to federal agencies, the general ADA principles it addresses apply equally to private employers.

With these points in mind, we suggest that employers take the following steps:

• Update all job descriptions, being careful to identify any essential functions that require in-person work;

• Evaluate each request for a disability accommodation that involves WFH based on the applicant’s or employee’s specific circumstances;

• Periodically review existing remote accommodation arrangements to ensure that the accommodations are still effective and necessary;

• Review and update WFH policies and protocols. In this regard, an employee who is permitted to telecommute as an accommodation for a disability can be held to appropriate expectations as to productivity, maintaining close communication with supervisors, and so forth; and

• Stay alert for future developments in this constantly changing area of the law.

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If you have questions about WFH or other accommodation issues under the ADA or similar state laws, please feel free to reach out to one of our experienced employment attorneys.