Telework as a Reasonable Accommodation During the COVID-19 Pandemic: Part 1—Overview of Reasonable Accommodation Laws

As mandatory work-from-home restrictions related to COVID-19 relax, many employees have asked to continue working remotely to protect themselves and their families. Understandably, manycsm_FlatDesign-Telework_c532b56131-300x196 employers are unsure how to respond to such requests on both a practical and legal level.  This two-part series addresses some legal considerations for employers and employees regarding teleworking as a way to minimize health risks posed by COVID-19 for individuals with disabilities.  In Part 1, herein, we provide an overview of the reasonable accommodation laws protecting an employee with a disability.

Whether an employer is required to allow an employee to telework to accommodate a disability triggers the Rehabilitation Act and the Americans with Disabilities Act.  Both Acts prohibit employers from discriminating against an otherwise qualified individual with a disability.  42 U.S.C. § 12112(a); 29 U.S.C. § 794(a).  Discrimination includes failing to reasonably accommodate an employee with a disability.  42 U.S.C. § 12112(b)(5).

Qualified Individual with a Disability

For purposes of a reasonable accommodation discussion, an employee is disabled when she or he has “[a] physical or mental impairment that substantially limits one or more of the major life activities of such individual” or has “[a] record of such an impairment.”  29 C.F.R. § 1630.2(g).  An employee is a qualified individual if he or she “can perform the essential functions of the employment position” with or without a reasonable accommodation.  42 U.S.C. § 12111(8).

Reasonable Accommodation Request & Undue Hardship

Once an otherwise qualified employee requests a reasonable accommodation, it is unlawful discrimination for the employer to fail to provide a reasonable accommodation “unless doing so would impose an undue hardship on the employer.”  Boyle v. City of Pell City, 866 F.3d 1280, 1289 (11th Cir. 2017).  An accommodation is reasonable if it enables an employee “to perform the essential functions” of a position or “to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities.”  29 C.F.R. § 1630.2(o)(1)(ii), (iii); see also 42 U.S.C. § 12111(9).   In determining what the “essential functions” are, consideration is given to the judgment of the employer and any written job description.  42 U.S.C. § 12111(8).  Under EEOC guidance, an undue hardship exists when “the accommodation would be too difficult or too expensive to provide, in light of the employer’s size, financial resources, and the needs of the business.”  Disability Discrimination, EEOC (last accessed Oct. 26, 2020); see also 42 U.S.C. § 12111(10).

Interactive Process

It is important to note that it may be unclear whether an employee has requested a reasonable accommodation or whether there even exists an accommodation that is reasonable.  In those situations, however, the employer is not off the hook.  The employer must engage in an informal, interactive process to “identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.”  29 C.F.R. § 1630.2(o)(3).

Next week, in Part 2 of this series, we discuss when telework may be a reasonable accommodation considering the increased use of telework during the COVID-19 pandemic.


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