At the beginning of the COVID-19 pandemic, many employers allowed some of their employees to work from home (i.e., “telecommute” or “telework”) in the interest of public health. We are now entering our tenth month of the pandemic, and working from home has become “the new normal” for many employers and employees. Now, as vaccines will become more readily available, there is hope that the pandemic will end soon. In a post-pandemic world, employers will have to decide if and when to have employees return to the worksite or if they will allow employees to continue to work from home. Indeed, some employers have already determined that working from home will continue. For example, in October 2020, Twitter announced that working from home would be available even after the pandemic.
If an employer decides, however, that it is going to require employees to return to the worksite, it should be prepared for possible requests for accommodation to work from home. Prior to the pandemic, the EEOC had issued guidance on whether working from home could be an accommodation. You can find EEOC’s guidance here.
First, the employer must determine if there is a physical or mental condition that limits the employee’s ability to work in the workplace. The EEOC writes that the employee “must explain what limitations from the disability make it difficult to do the job in the workplace.” A person who is merely fearful of returning to the worksite likely will not qualify as a person with a disability. On the other hand, if an employee has a medical reason that makes it difficult to perform their essential functions in the workplace, then that person may qualify as a person with a disability.
Second, assuming the employee can establish that he or she has qualifying limitations, the employer must evaluate whether telework can be provided as a reasonable accommodation. In responding to the question of how to determine whether working from home is a possible accommodation, the EEOC writes:
Several factors should be considered in determining the feasibility of working at home, including the employer’s ability to supervise the employee adequately and whether any duties require use of certain equipment or tools that cannot be replicated at home. Other critical considerations include whether there is a need for face-to-face interaction and coordination of work with other employees; whether in-person interaction with outside colleagues, clients, or customers is necessary; and whether the position in question requires the employee to have immediate access to documents or other information located only in the workplace. An employer should not, however, deny a request to work at home as a reasonable accommodation solely because a job involves some contact and coordination with other employees. Frequently, meetings can be conducted effectively by telephone and information can be exchanged quickly through e-mail.
Prior to the pandemic, many of these factors weighed against granting an accommodation to work from home for your particular agency. Some factors will likely continue to weigh against teleworking, both pre- and post-pandemic, e.g., positions that require face-to-face interaction or require access to highly confidential documents and information. In a post-pandemic world, however, your agency may need to re-analyze these factors to see if they still weigh against teleworking. For example, the employer may now have an infrastructure that allows basic administrative tasks to be performed remotely, whereas they did not have that prior to the pandemic.
As with any accommodation request, these requests will be unique to each employer and employee. If you receive an accommodation request, LCW attorneys are available to assist you and your agency with the request.