The short answer to the whether COVID-19 high-risk employees may continue to work from home as a reasonable accommodation under the Americans with Disabilities Act (ADA) depends on whether the essential functions of the job can be performed at home.
More employees than ever before currently from home (i.e., telework, or work remotely) mainly due to a precaution many employers accommodated during the COVID-19 pandemic. The implementation of mandatory workplace safety plans under the HERO Act (See, NY HERO Act ), the widespread availability of vaccines, more recently the availability of booster vaccines and controversial vaccine mandates, make it harder for high risk employees to argue that they should continue to work from home as a reasonable accommodation under the ADA.
How to Address Remote Work Accommodation Requests
Employers should tread carefully when an employee who has a legitimate disability under the ADA and is considered high-risk with respect to COVID-19, requests an accommodation to continue to work from home. The COVID-19 pandemic essentially created the use of telework as a reasonable accommodation when legal precedent was unsupportive. Prior to the COVID-19 pandemic, it was much easier for an employer to deny such an accommodation request because many workplaces were not set up for employees to work from home, amongst other reasons.
COVID-19 was a game changer for everyone…
What does the EEOC recommend for Remote Work?
The EEOC issued Guidance on this question in December 2020 and then updated it periodically as the pandemic progressed. Such Guidance addresses the issue of continuing to telework/work from home due to the COVID-19 pandemic. See, EEOC Guidance. The EEOC’s Guidance provides that if a workplace participated in telework/remote work during the COVID-19 pandemic, then “the period of providing telework because of the COVID-19 pandemic could serve as a trial period that showed whether or not this employee with a disability could satisfactorily perform all essential functions while working remotely and the employer should consider any new requests in light of this information.”
In other words,…if an employee with a disability was able to perform the essential functions of the job remotely during the pandemic, then such history could be used to support an employee’s request to continue to work remotely as a reasonable accommodation if needed.
However, the EEOC guidance also provides that an employer who previously allowed its employees to temporarily telework (work from home) as a reasonable accommodation during the COVID-19 shut down does not have to grant this same accommodation “if it requires continuing to excuse the employee from performing an essential function.”
Moreover, “the ADA never requires an employer to eliminate an essential function as an accommodation for an individual with a disability.”
What does the ADA Recommend for Remote Work?
The ADA requires employers to provide reasonable accommodations to employees with disabilities as long as doing so does not pose an “undue hardship” on the employer. Notably, the term “undue hardship” is generally a high burden for employers to meet. In addition, employers are required to engage in an interactive process with employees and sometimes the employee’s health care providers, to determine the nature of the employee’s disability and what, if any, reasonable accommodations would allow the employee to perform the essential functions of their job.
However, what many people do not know is that “the employer has no obligation under the ADA to refrain from restoring all of an employee’s essential duties whenever it chooses to restore the prior work arrangement, and then evaluating any requests for continued or new accommodations under the usual ADA rules.” See, EEOC Guidance.
Thus, if an essential job duty was for an employee to be physically at the workplace, then the employer may restore such work arrangement if needed without violating the ADA accommodation laws.
For more information on this issue, see my prior article about employees who work from home here: Legal Issues to Avoid When Employees Work from Home and how the ADA provides job protection for disabled employer here: Can an employee be fired while on disability leave .
What is the Alternative if Telework/Working from Home Cannot be Accommodated?
In the alternative, if an employee with a disability protected under the ADA is unable to be accommodated by telework/ working from home, and no other reasonable accommodations exist, then the employee may qualify for job protected medical leave under the federal Family and Medical Leave Act (FMLA), or the New York State Paid Family Leave Act (PFL).
Paid Family Leave
Under PFL, eligible employees may now take up to 12 weeks of job protected leave either all at once or intermittently in full-day increments and be paid 67% of the employee’s average weekly wage, capped at $971.61. Such employees have job protection, ensuring they can return to the same job (or a comparable one) upon return from PFL.
Family and Medical Leave Act
The FMLA provides guaranteed unpaid leave to certain employees to care for a serious medical condition; such leave tends to interact with the ADA. The FMLA only requires unpaid leave.
However, the law permits an “employee to elect, or the employer to require the employee, to use accrued paid vacation leave, paid sick or family leave for some or all of the FMLA leave period. An employee must follow the employer’s normal leave rules in order to substitute paid leave.” See, FMLA Frequently Asked Questions | U.S. Department of Labor (dol.gov)
Many employers and employees alike tend to confuse the different forms of leave surrounding an employee who needs to take time off from work due to a medical condition or disability covered under the ADA.
As such, it is important to consult with an attorney who can explain the different forms of leave available and assist both parties with determining the best suited reasonable accommodation through the interactive process, thus avoiding any unnecessary pitfalls or litigation.
This article is intended for general information and educational purposes only and should not be considered legal advice or counsel. No attorney-client relationship is created by the distribution of this article. The substance of this article is not intended to cover all legal issues or developments regarding the matter. Please consult with an attorney to ascertain how these new developments may relate to you or your business. © 2021 Law Office of Regina Sarkis, PLLC.