The Aftermath of COVID-19 and Teleworking
The COVID-19 pandemic brought more than a new virus into the workforce; it brought new challenges that required new solutions. For much of the workforce, this new solution included telework. Now, more than a year after the pandemic first swept across the world, many employees have come to enjoy working from the comfort of their own homes. As things begin to return to normal, many wonder if some of these new solutions, such as telework, will stick around. Employers have a similar question. Must they automatically allow their employees to continue to telework even if the workplace is reopening?
The simple answer is no. Of course, the full answer is not that simple. Moving forward, employers should treat limitations due to the COVID-19 pandemic as they would treat any other disability-related limitation in the workplace. Likewise, they should treat a request to continue teleworking as any other ADA accommodation request.
If an employee who does not have a COVID-related limitation requests to continue teleworking, an employer does not have to grant the request. If a COVID-related limitation does exist, the next inquiry is whether granting telework is a reasonable accommodation under the Americans with Disabilities Act (“ADA”). Whether an accommodation is reasonable depends on whether it requires excusing the employee from performing an essential job function. Factors such as the time spent performing a function, the consequences of not performing a function, and the job description are all evidence of what is considered an essential job function. If an employee cannot perform one or more of the essential job functions through the requested accommodation, the request is considered unreasonable and an employer is not required to grant it. Therefore, if an employee cannot perform an essential job function when teleworking, an employer does not need to grant that 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. Similarly, if there is a COVID-related limitation and the employer can provide a reasonable accommodation within the workplace to meet the employee’s need, the employer can opt for that alternative, even if telework is also a reasonable accommodation.
Some of you may be thinking, “But my employer excused some of my essential job functions during the pandemic. It was okay then, so why not now?” The EEOC has made it clear that just because an employer temporarily excused the performance of one or more essential job functions during the COVID pandemic, it does not mean the employer permanently changed the essential functions of the job. With the return of the workforce comes the return of the essential job functions. There is little doubt that employees will request telework at an increasing rate. However, the pre-COVID ADA rules will continue to apply.
At the end of the day, the COVID-19 pandemic has taught us the importance of working together to find a workable solution. This past year has required flexibility and understanding. Moving into this next phase will require the same for both the employer and the employee.
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