Remote work covered as a reasonable accommodation under the Americans with Disabilities Act (ADA)
Over the past year and a half, employers have been balancing the health and safety of their employees with the need for productivity, and for many, that has meant transitioning to a remote workforce. As COVID-19 cases continue to drop and vaccination rates increase, many businesses are considering or have already begun the return to in-person operations.
But for individuals with disabilities, one silver lining of the pandemic was the widespread availability of remote positions. For decades, the disability community has advocated for remote work as a reasonable accommodation, with little success. The pandemic was the catalyst for making this option mainstream, but with a return to in-person operations underway, many are concerned that the progress made on this issue could be reversed.
With all of these factors in play, many employers wonder whether they can require employees to return to the office. Here’s the answer, for all those employers and employees asking the question, “Is remote work covered as a reasonable accommodation under the Americans with Disabilities Act (ADA)?”
The Equal Employment Opportunity Commission (EEOC) provided the first guidance on this question back in September 2020 by clarifying that employers are not required to make accommodations for employees who prefer to work remotely due to the concern of contracting COVID-19 or transmitting it to a loved one. But if an employee is requesting to remain remote because of an underlying disability, the answer may be different.
Under the ADA, an employer is entitled to understand the reason for an accommodation request, and if it is not related to a disability, the employer doesn’t have to grant it. It’s also possible that an employer can address the need by providing a different accommodation – such as offering a separate workspace or flexible hours – instead of approving the request to work remotely.
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During the pandemic, employers may have allowed their employees to temporarily work from home, even if doing so meant they were unable to perform an essential function of their job. But if the request to remain remote would continue to bar an employee from performing that function, an employer is under no obligation to approve remote work as a reasonable accommodation.
The wording in the ADA is very clear: reasonable accommodations should not pose an undue hardship on the employer – meaning something that is too difficult or expensive – and eliminating an essential function could fall under that description. To determine whether a request for remote work is feasible, EEOC guidelines recommend that employers go through an interactive process with the employee to analyze the job requirements, identify the restraints involved with their disability, and determine a suitable accommodation.
Even if an employer can’t offer the option of remote work, there are resources available for those interested in learning more about how to provide other reasonable accommodations for employees with disabilities. The EEOC guidelines on reasonable accommodations are a good place to start, as they provide a list of possible accommodations depending on the situation, as well as scenarios that illustrate when these accommodations would represent an undue hardship.
The government-funded Job Accommodation Network (JAN) is another free service that provides employers and individuals with ideas about effective accommodations. Employers in need of assistance should contact JAN counselors, who can perform individualized searches for workplace accommodations based on job requirements, an individual’s limitations, environmental factors, and other relevant information.
As the pandemic recedes, the return to in-person work may represent a challenge for individuals with disabilities, particularly those who have been able to work remotely over the last year and a half. While remote work can be considered a reasonable accommodation, employers should take this opportunity to assess each individual request and explore the options to ensure that they – and their employees – can make a smooth transition back to the workplace.
