August 3, 2021
This paid piece is sponsored by Woods, Fuller, Shultz & Smith PC.
By David C. Kroon, Labor Law Attorney
The COVID-19 pandemic brought more than one new virus to the workforce; it brought new challenges that required new solutions. For a large part of the workforce, this new solution also included teleworking. Now, more than a year after the pandemic first swept the world, many employees enjoy working from home. As things return to normal, many are wondering if some of these new solutions, such as teleworking, will persist. Employers have a similar question. Do you have to automatically allow your employees to telework when the workplace is reopened?
The simple answer is no. Of course, the full answer isn’t that simple. Going forward, employers should treat restrictions caused by the COVID-19 pandemic the same way they would treat any other disability-related restriction in the workplace. Likewise, they should treat a resume telework request like any other ADA accommodation request.
If an employee who does not have a COVID-related restriction requests to continue teleworking, an employer does not have to grant the request. If there is a COVID-related restriction, the next investigation is whether allowing teleworking is a reasonable accommodation under the Americans With Disabilities Act or ADA. The adequacy of an accommodation depends on whether it requires an excuse from the worker from performing an essential job function. Factors such as the time spent performing a role, the consequences of not performing a role, and the job description indicate what is considered an essential professional role. If an employee cannot fulfill one or more of the essential work functions through the requested accommodation, the request is considered unreasonable and an employer is not obliged to grant it.
Therefore, if an employee is unable to perform an essential professional function while teleworking, the employer does not have to grant this request. For example, if an essential function of the job is face-to-face customer interaction, then an employer is not required to grant an employee’s telework request. If there is a COVID-related restriction and the employer can provide reasonable accommodation in the workplace to meet the employee’s needs, he can opt for this alternative, even if teleworking is also a reasonable accommodation.
Some of you may be thinking, “But my employer apologized for some of my essential job functions during the pandemic. It was okay then, so why not now? ”The EEOC has made it clear that the fact that an employer temporarily excused performing one or more essential job functions during the COVID pandemic does not mean that the employer is performing the essential functions of the Position has changed permanently. With the return of the workforce comes the return of the essential work functions. There is no doubt that workers will increasingly request teleworking. However, the ADA rules prior to COVID-19 still apply.
Ultimately, the COVID-19 pandemic taught us the importance of working together to find a workable solution. The past year has required flexibility and understanding. The transition to this next phase requires the same for employers and employees.
If you have any questions about workplace policies and ADA housing inquiries, Woods Fuller’s labor law attorneys can help. Click here for information.
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