COVID-19 and telework as an accommodation: is this narrow legal right applicable to you?
The COVID-19 pandemic has accelerated the general workplace trend toward greater use of telework (also known as telecommuting, work from home, tele-work, or remote working). After the expiration of social distancing mandates, some employers may choose to extend the availability of telecommuting for their workers. After all, there are many valid business reasons for employers to expand telework as an option. But workers need to be aware that telecommuting is not a legal right, except in very limited circumstances.
In the field of employment law, it always a good idea to remember that worker rights are limited. Employers are very much aware of this fact. The bottom line is this: if an employer does not want to provide telework as an option, then the law generally supports the employer’s decision.
But there may be a legal right to telework if an employee with a disability needs telework as a reasonable accommodation. As explained by the EEOC, “Changing the location where work is performed may fall under the ADA’s reasonable accommodation requirement of modifying workplace policies, even if the employer does not allow other employees to telework.” (EEOC Guidance, “Work at Home/Telework as a Reasonable Accommodation,” Feb. 3, 2003.)
But what about requesting telework as an accommodation in connection with COVID-19? If an employee has a documented medical condition making the employee particularly susceptible to infection, and if the job in question can be successfully performed remotely, many employers are likely to provide telework as a temporary accommodation during the pandemic, especially if the request is supported by a note from the employee’s doctor. There are likely to be other medical situations where telework provides a reasonable accommodation during the pandemic.
Telework as a reasonable accommodation is well established legally, but not all employers will quickly agree to such a request. For example, the employer may express doubt that the employee has a disability. Or the employer may claim that the essential functions of job in question cannot be performed remotely. And it is very common for employers to require medical documentation to support a requested disability accommodation.
Workers with a medical issue may want to explore with their doctor and their employer the possibility of telework as an accommodation. An additional resource for employees and employers is the Job Accommodation Network (JAN), which provides free consultations to assist with accommodation issues. JAN provides a specific webpage with discussion of telework issues.
