WFH, the ADA, and the Post-Pandemic Workplace, by John Beranbaum and Ariana Zhao
A surprising silver lining of the pandemic has been the increased accessibility for disabled individuals in ways that had once seemed impossible. For two years, people were encouraged to work from home (WFH), schedule telehealth visits, attend classes remotely, and engage in virtual social opportunities in an effort to contain the spread of Covid-19. But as cases continue to remain low and employers begin the return to in-person operations, this small victory for the disability community may be reversed. For all employees and employers seeking clarity on whether remote work constitutes a reasonable accommodation, here’s the answer.
Under Title I of the Americans with Disabilities Act (ADA), a reasonable accommodation is an adjustment to a job that allows a person with a disability to enjoy equal employment opportunities as long as the accommodation does not create an undue hardship upon the employer. Before the pandemic started in 2020, telework was already a well-established reasonable accommodation for disabled employees. During the pandemic, employers temporarily allowed their employees to telework even if doing so meant they were unable to perform an essential function of their job.
Now, however, in order for an employee with a disability to continue to telework as a reasonable accommodation, the employee must show they can perform the essential functions of the job remotely such that an accommodation does not pose an undue hardship on the employer.  According to the U.S. Equal Employment Opportunity Commission (EEOC), an employer does not have to “automatically” continue an employee’s telework accommodation and is entitled to understand the disability-related limitation in its determination. As such, the EEOC recommends the following process to determine a suitable accommodation for both parties:
- Disclosure of disability: in the event that a disability is not obvious, an employee is required to disclose their disability to their manager or to human resources and state how the disability is interfering with their work. This disclosure constitutes a reasonable accommodation request.
- Interactive process: the employer and employee must engage in a confidential interactive meeting to improve the employer’s understanding of how the employee’s disability impedes them from carrying out a part of their job.
- Documentation: in some cases where the disability is not obvious, the employee may be asked to provide medical documentation pertaining solely to their request for an accommodation.
- Determine the appropriate accommodation: once the employee’s limitation has been identified, the employer can begin exploring accommodation options. If multiple options exist, the employer should consider the preference of the employee so long as it does not create an undue hardship.
- Implement the accommodation: once the interactive process has concluded, the accommodation must be implemented as agreed upon by both parties. It is worth noting that in some cases, an interim or trial period accommodation may be offered, in which case the interactive process should be revisited once the temporary accommodation concludes.
An important step that will undoubtedly be brought up during the interactive process is a breakdown of the employee’s functions, particularly the ones that are deemed essential. One case that may shed some clarity as to whether in-person attendance is such an essential function is Hostettler v. College of Wooster, 895 F.3d 844 (6th Cir. 2018), where the Sixth Circuit determined that “full-time presence at work is not an essential function of a job simply because an employer says that it is.”  Furthermore, employers will have a hard time arguing that a telework accommodation creates an undue hardship or prevents the employee from performing their essential functions when the employee successfully implemented telework during the pandemic. See Peeples v. Clinical Support Options, Inc., 487 F.Supp.3d 56, 65 (D. Mass. 2020) (requiring the employer to allow plaintiff to continue teleworking as a reasonable accommodation for asthma during the COVID-19 pandemic where the plaintiff proved that he performed the same duties on-site and at home).
As the pandemic recedes, employers and individuals with disabilities should remain alert to EEOC guidelines when it comes to navigating their post-pandemic obligations under the ADA. We will report any changes made in those guidelines or court decisions.
This article is intended as a general discussion of these issues only and is not to be considered legal advice or relied upon. For more information, please contact RPJ Attorney John A. Beranbaum who counsels clients on employment law, litigation, arbitration, negotiation, and trial advocacy. Mr. Beranbaum is admitted to practice law in New York and New Jersey and before the U.S. Supreme Court, U.S. Court of Appeals from the Second and Third Circuits, U.S. District Court for Southern and Eastern Districts of New York, District of New Jersey, Eastern District of Pennsylvania and the Northern District of Florida.
 See EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship, 915.002, 10/17/02 Question 34