The Americans with Disabilities Act (“ADA”) makes it unlawful for an employer to deny a reasonable accommodation to an employee with a disability. For purposes of the ADA, an individual is “disabled” if he or she has (1) a physical or mental impairment that substantially limits one or more major life activities, (2) history or record of such an impairment, or (3) is perceived by others as having such an impairment. The individual requesting an accommodation must also be “qualified” for the position meaning he or she can perform the essential functions of the position with or without an accommodation. The essential functions of a job are determined by the job description, the employer’s opinion, the amount of time spent performing the function, the consequences for not requiring the individual to perform the duty, and past and current work experience.
A requested accommodation is considered “reasonable” if it will allow the employee to perform the essential functions without undue hardship to the employer. In other words, the accommodation cannot burden the employer, taking into account the employer’s resources that would be required to provide the accommodation. For example, if an employer was forced to spend a considerable portion of its personnel, time, money, and other resources to accommodate the employee, it could be considered an undue hardship.
Previously, it may have been thought that allowing an employee to work from home, or remotely, full-time or part-time would be an undue burden on an employer. But now as remote work has become more common since 2020, allowing an employee to work from home may not seem as unreasonable as it once was. Taking this all into account, here are some factors to consider if an employee requests to work from home as an accommodation in a post-pandemic world.
Remote Work is Not Automatic
To begin, no matter what the employer’s previous policy was with respect to remote work, the employer is not required to automatically grant it as a reasonable accommodation. Every employer is permitted the opportunity to understand an employee’s disability and his or her limitations that necessitate the requested accommodation. If the employee does not have disability-related limitations that require remote work or if the employer can effectively accommodate the limitations without permitting the employee to engage in remote work, then the employer does not have to grant the request for remote work.
Also, if an employee was permitted to work remotely during the COVID-19 pandemic while being excused from performing an essential job function, then a request after the workplace reopens to continue remote work may be denied if it would require continuing to excuse the employee from performing the essential function. Under the ADA, employers are never required to eliminate an essential function of the job as an accommodation for an individual with a disability.
The Interactive Process
Another possible scenario is that employees may have previously requested remote work before the COVID-19 pandemic and were denied out of concern that the employee would not be able to perform all of their essential job functions, yet in the period of remote work during the COVID-19 pandemic, the employee proved to be able to perform all essential functions. In this case, the employer should at the very least engage in a renewed “interactive process” with the employee and take into account the performance of the employee during the period of remote work. This could be a factor in establishing that the employer no longer can argue that remote work would pose an undue hardship.
The interactive process is a critical step during which the employer should adequately review the accommodation request. A good practice is to ask for an accommodation request in writing from the medical provider as well as supporting information to ensure that the employer’s investigation is being documented. Be sure to obtain a written release from the employee before requesting such information from the provider.
The interactive process should also be used by the employer to determine if alternative accommodations are available such as a “hybrid” or flexible work schedule. This is an opportunity for both the employer and employee to understand the needs and limitations of the other side and foster a positive relationship going forward.
As with all matters relating to the Americans with Disabilities Act, being fully informed is the employer’s best tool to ensure that sensible decisions are made with respect to accommodation. An employer’s first reaction to any request should be to learn as much as possible about an employee’s circumstances before deciding on what accommodation, if any, is warranted.