In the olden days, like 2019, working remotely was a big deal for most workplaces. It was not included often as a reasonable accommodation under the ADA because it was considered an undue hardship. Fast forward through 2020 and to now when remote work is much more common. Where does this leave remote work as a reasonable accommodation?
The EEOC has stated (D15) that telework does not have to be automatically continued as a reasonable accommodation when there is a return to work. But it probably is not going to be an undue hardship if the essential functions* were met. Case in point: the EEOC has initiated its first COVID-19 ADA lawsuit against a company for failing to allow an employee to continue to work some days remotely in spite of letting others do so. Plus, the employee had good results while remote and they also fired her.
This case gives us a good glimpse into how to comply with the EEOC now:
- A return to work will require the interactive process to address a request for an accommodation under the ADA;
- As part of that process, the employer must consider the remote workforce as a whole and the individual employee’s work while remote; and
- *The ADA does not require an essential function of the job to be stripped permanently after COVID-19 shut downs or remote work BUT, as we have stated before, the function of the job may have changed and will need to be examined. Maybe duties that were performed on site are not essential to the position any longer.
As we expected, the EEOC also announced last week that “long COVID” may be a disability under the ADA. More on that will be coming in the next weeks and we will keep you updated.
Questions? We can help. We have fixed fee packages on ADA accommodations, remote and hybrid work policies, job description updates, and you can also join our happy clients who use our On Call service. Contact us at questions@foleylawpractice.com or 508-548-4888.