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EEOC Sheds Light on Telework as a Reasonable Accommodation

Navigating the Americans with Disabilities Act has long presented complex challenges for employers, and the growing prevalence of requests to work from home has added a new layer of complexity to these obligations. The Equal Employment Opportunity Commission, together with the Office of Personnel Management, recently issued guidance addressing requests to telework. Although the guidance is directed primarily at federal employees, it offers valuable insight into how the EEOC is approaching remote work accommodations under the ADA.

Telework Accommodations and Modifications

The guidance states that telework that is primarily for the employee’s personal benefit is not recognized as a reasonable accommodation under the ADA. Telework accommodation requests must be necessary for an employee with a disability to perform the essential functions of their position or to enable them to enjoy equal benefits and privileges of employment as are enjoyed by employees without disabilities. Possible mitigation of symptoms of a disability or improvements to quality of life by teleworking do not alone establish an entitlement to telework as a reasonable accommodation. Employees must explain how telework would also enable them to perform the essential functions of their role.

Importantly, the guidance confirms that employees are not necessarily entitled to their preferred accommodation indefinitely. An employer may reevaluate a previously granted telework accommodation and replace it with an effective alternative reasonable accommodation. This reevaluation may occur periodically (e.g., annually) or in response to material changes in the employee’s condition, job requirements, operational needs, etc. Through an individualized assessment, employers may determine whether telework remains necessary or whether alternative in-office accommodations, such as assistive devices, modified equipment, environmental modifications, job restructuring, or flexible scheduling, can meet the employee’s needs. Where appropriate, employers may also reduce telework and supplement it with an in-office accommodation, provided the overall arrangement remains reasonable and effective.  Employers may require that an employee try an in-office accommodation before concluding it is ineffective.

Employers should avoid blanket approaches to rescinding/denying all telework accommodations.  These decisions should be made after an individual assessment as part of the interactive process.

When reevaluating an employee’s need to telework, if the need to telework is not obvious, employers may request updated documentation sufficient for a reevaluation decision. Employers may also ask health care professionals about mitigating measures or self-accommodations the employee could take that would permit the employee to work in the office. If there is conflicting or contradictory evidence as to the need for telework accommodations, employers should take care to base their decisions on the best available evidence and discount contradictory evidence that is unreliable. In some situations, employers may consider evidence from sources other than the employee or the employee’s health care provider.

The fact that an employer temporarily excused performance of one or more essential functions of an employee’s role when it chose to permit telework does not mean that the employer permanently changed a job’s essential functions, that telework is always a feasible accommodation, or that it does not pose an undue hardship. These are fact-specific determinations, and employers may restore all an employee’s essential duties at such time as they choose.

Telework Accommodations for Anxiety

As to requests to work from home due to anxiety experienced while working in the office, the guidance provides that there is no general right to be free from all discomfort and distress in the workplace, including anxiety. Simple observation can be the best approach to telework requests in this vein. If an employee requests telework due to anxiety or similar distress in the workplace, the employer should first observe the employee perform their duties in the workplace. If the employee is able to perform to the employer’s satisfaction, then anxiety is likely not a material barrier to equal employment opportunity. In the run of cases, common anxiety, without more, is unlikely to impose a material barrier. If there is a demonstrated material barrier, however, the employer must consider reasonable accommodations, but not necessarily telework.

Telework Accommodations for Long Commute Times

Employees with disabilities may request an accommodation to telework because of their difficult or lengthy commute. In these cases, where the length and means of the commute are outside of the employer’s control, it is unreasonable to require the employer to excuse the employee from commuting. While an employer may not be required to altogether eliminate an employee’s commute through telework, it may need to make some workplace modifications, such as flexible work scheduling, to enable the employee to effectively accomplish their commute and access the worksite.

Refusal to Return to Office

If an employee refuses to comply after a telework accommodation is modified or rescinded, the employee may be marked absent without leave, and appropriate disciplinary measures may be taken.

Conclusion

Although this guidance is directed at federal agencies, the positions articulated in this guidance may well inform how the agency evaluates telework accommodation disputes outside the federal sector. Generally, this guidance is largely consistent with what private employers already know about their obligations under the ADA as it relates to the interactive process and modification of accommodations. However, several positions articulated in the FAQs remain the subject of active litigation, and employers should be mindful that courts in different jurisdictions may approach these issues differently. Please do not hesitate to reach out to discuss your organization’s needs and approach to evaluating telework accommodations.