United States: Pandemic Telework Does Not Create Presumptive Right To Telework Post-Pandemic According To EEOC

Seyfarth Synopsis: With telework seeming like the new normal for many, employers and employees have been wondering whether pandemic telework will be seen as creating a presumptive right to post-pandemic telework as a reasonable accommodation for employees with disabilities. On September 8, 2020, the EEOC answered "no" to this burning question in its updated "Technical Assistance Questions and Answers" on issues dealing with COVID-19 and the ADA and other equal employment opportunity laws.

Six months into the pandemic, with many employees still working from home, teleworking is far more common than ever. Some employers are encouraging or permitting many employees to work remotely for the rest of 2020 (and beyond). Today's situation is far different from five years ago when the EEOC lost in its attempt at the Sixth Circuit to expand telecommuting as a reasonable accommodation under the ADA, a case we blogged previously here.

Nowadays, employers are preparing for a potential tidal wave of reasonable accommodation requests for telework after they resume requiring onsite work. Employees may wonder whether the employer has to continue the telework arrangement after the worksite reopens, and other employees may seek to renew previously denied, pre-COVID-19 telework reasonable accommodation requests. Finally, the EEOC has stepped in to address this issue in its September 8, 2020 updates to its "Technical Assistance Questions and Answers" on issues dealing with COVID-19 and the ADA and other equal employment opportunity laws.

The EEOC's answers provide useful guidance for employers. As a baseline, the EEOC notes that any across-the-board treatment like a presumption is inconsistent with the EEOC's oft-repeated maxim that reasonable-accommodation inquiries must be addressed on an individualized basis. Instead, "[a]ny time an employee requests a reasonable accommodation, the employer is entitled to understand the disability-related limitation that necessitates an accommodation" and then proceed through the interactive process accordingly regarding a potential reasonable accommodation.

The EEOC also reiterates another fundamental precept that "[t]he ADA never requires an employer to eliminate an essential function as an accommodation for an individual with a disability." Relying on this precept, the EEOC makes a common-sense determination that employee advocates may tend to ignore or de-emphasize: "The fact that an employer temporarily excused performance of one or more essential functions when it closed the workplace and enabled employees to telework for the purpose of protecting their safety from COVID-19, or otherwise chose to permit telework, does not mean that the employer permanently changed a job's essential functions .." In other words, temporarily making the best out of telework out of necessity and compassion does not tie an employer to forever deeming this a successful means for fulfilling all of the long-term essential functions.

Nevertheless, the EEOC recognizes a scenario under which the pandemic telework experience of an employee could be relevant to telework as a reasonable accommodation post-pandemic. If an employee renews a pre-COVID-19 request for teleworking as a reasonable accommodation, the EEOC suggests that this prior teleworking experience could be relevant in considering the renewed request. The pandemic telework "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."

Another consideration for employers is how the November elections may impact the EEOC moving forward. EEOC appointees under a new administration might be more inclined to resume the efforts of Obama-era appointees to expand the circumstances under which telework is required as a reasonable accommodation.

In light of these factors, employers may benefit from beginning to reevaluate now the positions for which they believe onsite work will be an essential function post-pandemic and ensuring documentation of these designations and related justifications.

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