Telework As a Reasonable Accommodation in the Age of COVID-19 | The EEOC Provides Helpful Guidance, But Employers, Especially Those with Wisconsin Employees, Should Remain Cautious
For multiple months now, I have been having regular conversations with employers regarding the potential impact coronavirus-related telework/work-from-home arrangements may have on their obligations to provide reasonable accommodations under disability law. The central concern goes something like this:
- The employer would strongly prefer to have its employees work at the office and, until this year, considered office attendance to be essential. Now, however, as a result of coronavirus-related precautions and/or government-mandated closures, much of the employer’s work force has been working from home and doing so (in at least some instances) as productively as before the pandemic. Is the employer now required to permit employees with qualifying disabilities to telework as a reasonable accommodation?
On September 8, 2020, the Equal Employment Opportunity Commission (“EEOC”) issued new guidance that helps to address this concern, at least to a degree.
The EEOC’s Updated Guidance
In its updated guidance, the EEOC made each of the following points:
- Employers that have granted (or have been required to grant) employees the ability to telework as a result of concerns relating to COVID-19 are not “automatically” required to grant telework as a reasonable accommodation under the Americans with Disabilities Act. Instead, an employer is entitled to engage in the interactive process with any employee seeking an accommodation and determine whether: 1) the employee’s disability-related limitations require telework; and/or 2) whether there may be another available accommodation that adequately addresses the employee’s limitations.
- Significantly, “[t]o the extent that an employer is permitting telework to employees because of COVID-19 and is choosing to excuse an employee from performing one or more essential functions, then a request—after the workplace reopens—to continue telework as a reasonable accommodation does not have to be granted if it requires continuing to excuse the employee from performing an essential function. The ADA never requires an employer to eliminate an essential function as an accommodation for an individual with a disability.”
An employee’s effectiveness in performing the job while on coronavirus-related telework can be relevant to whether telework is a reasonable accommodation under the ADA after the employer otherwise requires employees to return to work. In fact, the EEOC specifically says that the coronavirus-related telework period can be a “trial period” for working-from-home under other circumstances.
Taken as a whole, I think the guidance is largely reassuring to employers – an employer that may have altered a position’s essential functions and/or excused certain productivity issues to enable employees to work from home as a result of coronavirus concerns is not required to permanently accept the changes/diminished productivity as a reasonable accommodation under the ADA. However, the guidance still points to some risks. Namely, even if an employer would strongly prefer to have its employees work from the office, it will become more difficult for the employer to argue that office work is essential if employees are able to perform their jobs effectively from home, especially if they have been able to do so over a relatively lengthy period of time.
Wisconsin Employers Face Additional Risks
Unfortunately, Wisconsin employers face additional risks as a result of the accommodation requirements imposed by the Wisconsin Fair Employment Act (“WFEA”). Wisconsin courts (as well as the Wisconsin Labor and Industry Review Commission) have repeatedly held that, depending on a given set of circumstances, a Wisconsin employer may be required to alter the duties of a position as a reasonable accommodation to comply with the WFEA. In other words, although employers are not required to change/eliminate essential functions of a position under the ADA, Wisconsin employers may be required to do just that under Wisconsin law.
Given this background, I can easily envision a scenario under Wisconsin law in which an employer that has offered/mandated telework for a period of time as a result of COVID-19 is required to permit an employee to continue to telework as a reasonable accommodation, even when the employer would strongly prefer the employee to work in-person, the person’s productivity would arguably be greater in person, and/or the employer ordinarily considers in-person work to be essential. The danger of this risk materializing will almost certainly become more acute the longer the employer’s employees are able to work from home during the pandemic and do so relatively effectively.
Wisconsin employers should remain cognizant of this risk when evaluating their coronavirus-related telework policies, and, if they have not already done so, consider taking some precautions in an effort to mitigate the risk, including periodically emphasizing in writing to employees the temporary nature of any working-from-home privileges and/or the need for in-person work when conditions are appropriate to do so safely.