I contribute an Employment Law advice column to The Human Resources Association of Broward County newsletter. A reader recently asked a question that I thought was important and I wanted to share.
If an organization does not allow telework for any of their employees, but an employee is requesting an accommodation under the ADA to telework due to their medical condition. Can the organization deny that request because they do not allow anyone else to do it?
Dear Confused in Cocoa:
This is a great question! Under the ADA, you are required to provide reasonable accommodations needed so that the employee can perform his/her essential functions. A request to work from home due to a disability triggers an obligation for your organization to engage in an interactive discussion with the employee to understand exactly what the employee is requesting and why the employee believes that granting this request will allow the employee to perform the essential functions of his/her position.
The fact that your organization has a rule prohibiting telework does not exempt the organization from engaging in an interactive reasonable accommodations discussion with the employee regarding what s/he needs from the organization. It also does not mean that you do not need to consider permitting work from home. Even before the pandemic, the EEOC stated that working from home may be a reasonable accommodation in some cases.
In order to comply with your organization’s obligations under the ADA, someone needs to carefully review the position this employee holds (including the job description) to determine whether the essential job duties can be performed remotely. You should pay close attention to any functions that cannot be performed remotely. Are the duties which cannot be performed remotely critical or essential to the position? If this employee does not perform these job duties, who does? What kind of burden does someone else performing these duties impose on the organization or other employees? For example if you can show delays in providing services or a significant burden on others, you may have a better argument that the accommodation requested is not reasonable.
You also should consider whether your organization has the systems and protocols in place to permit the remote work. For example, if the employee handles private personal information or other private/sensitive information, does your organization have sufficient safeguards in place to allow access to this information remotely? The burden to implement these safeguards must be considered in determining whether work from home is a feasible accommodation. As a reminder the ADA only requires that you provide reasonable accommodations that do not cause an undue burden on the employer.
If you ultimately decide that working from home is not feasible, be sure to close the loop with the employee. You should explain the specific reasons why you cannot offer working from home as an accommodation and ask the employee if there is anything else that could allow the employee to continue working. Keep the door open, the ADA is best described as a tennis game- don’t let the ball stay on your side of the net.