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EEOC GUIDANCE: Telework Accommodations Not Automatically Required Post-COVID

Posted by Michael J. Rose | Sep 14, 2020 | 0 Comments

As employers plan to map out return-to-workplace scenarios for their employees post-Covid, the Equal Employment Opportunity Commission (“EEOC”), has shed some light on whether telework, as it implicates ADA issues, should become a permanent staple of the employer's landscape going forward.

On September 8, 2020, EEOC provided guidance that as employers reopen and employees are called back to their workplaces, employers are not automatically required to grant telework as a reasonable accommodation to every employee with a disability who requests it.

The Americans with Disabilities Act (ADA) prohibits an employer from refusing to make reasonable accommodations for the known physical or mental limitations of an otherwise qualified individual with a disability. See 42 U.S.C.S. § 12112(b)(5)(A).

The term reasonable accommodation means modifications or adjustments to the work environment that enable an individual with a disability who is qualified to perform the essential functions of that position, as well as modifications or adjustments that enable an employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities. 29 C.F.R. §§ 1630.2(o)(1)(ii)—(iii). The term essential functions means the fundamental job duties of the employment position the individual with a disability holds or desires. See 29 C.F.R. § 1630.2(n)(1) See Also Ugactz v. UPS, Inc., No. 10-CV-1247 (MKB), 2013 U.S. Dist. LEXIS 43481, at *1 (E.D.N.Y. Mar. 26, 2013)

During this unprecedented time of Covid-19, EEOC has given guidance to employers on how to handle requests from employees for reasonable accommodations under ADA. However, now as companies plan out their strategies to resume full operations post-Covid, EEOC is reminding employers that they should continue to assess each reasonable accommodation request on the merits of its own circumstances, as they did in the pre-Covid world. As EEOC stated, “employers are entitled to understand the disability-related limitation that necessitates an accommodation. If there is no disability-related limitation that requires teleworking, then the employer does not have to provide telework as an accommodation. If there is a disability-related limitation but the employer can effectively address the need with another form of reasonable accommodation at the workplace, then the employer can choose that alternative to work.” See Cosme v. Henderson, 287 F.3d 152, 158 (2d Cir. 2002) (“the employer need not offer the accommodation the employee prefers. Instead, when any reasonable accommodation is provided, the statutory inquiry ends.”).

While many employers have chosen to suspend some essential job functions to make telework viable, those same employers will be able to reestablish the suspended essential job functions as they resume full operations. To the extent that telework was granted as a reasonable accommodation because of suspended essential job functions, employers will be allowed to make a determination of a reasonable accommodation request with the original essential functions of that employee built back into the decision-making process.

The EEOC reiterated that an employer's decision to temporarily suspend some of its essential job functions to protect its employees from Covid does not permanently change that job's essential functions. It also does not preclude an employer from articulating how telework can be an undue hardship going forward. See Conn. Gen. Stat. § 46a-60(a)(3).

In summary, an employer has no obligation under ADA to continue the suspension of essential job functions and consequently, any request for a reasonable accommodation going forward will be evaluated with respect to all an employee's essential job functions.

If you have any questions or concerns about compliance with federal or state law, Rose Kallor, LLP provides a full range of labor and employment counseling to private and public-sector employers.

About the Author

Michael J. Rose

Managing Partner


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