In 2020, teleworking has become the new norm for tens of thousands of employees across the country. As employers were forced to allow employees to telework because of COVID, their fears about it destroying overall production have significantly fallen away. As the COVID pandemic is expected to come to an end, will employers now be more receptive to a disabled person’s request for teleworking as a reasonable accommodation?
Telework Accommodations Determined by the ADA
Under the Americans with Disabilities Act (ADA), employers with over 15 employees are required to provide reasonable accommodations for a disabled employee, as long as such accommodation still allows him to perform his essential job functions, and does not cause an undue hardship to the employer. “Undue hardship” has been defined as a “significant difficulty or expense” to the employer.
Teleworking has been an important tool this past year in providing reasonable accommodations to many disabled workers who were a higher risk of contracting COVID-19. Yet teleworking may not carry over as well as we might think once the pandemic is gone. In fact, the EEOC (Equal Employment Opportunity Commission) has released guidance saying disabled workers who were teleworking during the pandemic are not automatically entitled to telework once their employer asks them to return back.
Requesting Ongoing Telework Accommodations
Disabled employees who might want to continue telework should begin now talking to their employer about an appropriate “reasonable accommodation” once all the pandemic guidelines have gone away. Just know up front that the same accommodations provided during the pandemic may not always be feasible, and employers may want to offer other effective accommodations. Your employer may have only provided telework out of necessity during the pandemic, and never intended such accommodations to be permanent. Specifically, if the employer can show that continuing teleworking would now cause “significant difficulty or expense”, they don’t have to provide it.
Yet, there is no doubt that disabled employees have a stronger argument for continuing an accommodation of teleworking now that the pandemic has shown it can work effectively, including in many situations which were previously not believed to be productive.
If you believe you have suffered from discrimination or retaliation due to a protected characteristic or activity, such as a disability, and want to learn more about your rights, contact an attorney for further advice on your potential claim. Our attorneys are always available to hear your story and answer any other questions you may have regarding what we know to be this very difficult time.