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Remote work arrangements enabled the survival of many organizations this spring and summer. But could the decision to send workers home obligate employers to provide similar accommodations for employees with disabilities in the future?
The answer, of course, is somewhat complicated.
Facing COVID-19, employers have had to abandon normalcy in many ways, Greensfelder, Hemker & Gale Officer Molly Batsch reasoned. "I do feel courts are going to recognize that the pandemic is its own animal," she told HR Dive in an interview. "Just because you did things during this time period doesn't necessarily set a precedent going forward."
In other words, an employer's decision to have employees work remotely during the pandemic will not necessarily require it to grant a worker with a disability the same accommodation under normal circumstances. "I don't think courts will say ‘just because you allowed this during the pandemic means that you have to allow this on a permanent basis," Batsch said.
But employers may have to enhance their defenses to such requests, she cautioned.
Employers, especially smaller ones, frequently reason that they can't grant work-from-home accommodations because enabling a worker to do so would cause them undue hardship, Batsch said. The employer may have to provide a laptop, a VPN service and other remote work equipment, for instance.
Many employers did just that with entire swaths of their workforces to sustain operations when governments began issuing stay-at-home and stay-safe orders this spring. "That's not going to be an out anymore," Batsch said. "That's going to be somewhat precedent-setting."
Employers also tinkered with workers' job functions to enable remote work during the pandemic. "For most of the employers I've spoken to, a lot of the workforce that was able to work from home, they had to adjust their job functions," Batsch said. "People are not necessarily doing the same jobs they were doing when the pandemic arose." The U.S. Equal Employment Opportunity Commission (EEOC), which enforces the Americans with Disabilities Act, specifies in guidance that "an employer never has to reallocate essential functions as a reasonable accommodation, but can do so if it wishes."
Still, making such adjustments during the COVID-19 crisis may prompt employers to reconsider which functions are truly essential and rework their job descriptions, Batsch said. Employers may deliberate over whether it's truly necessary for sales people to travel, for example, after sales teams completed their work online for several months.
Of course, such changes may create a ripple effect. "As job descriptions are being modified to enable people to work from home, that's probably going to roll over into whether accommodations are reasonable or not," Batsch said.
Ultimately, the question of how employers' pandemic response measures play into future accommodations will depend on the EEOC's interpretation. "Until we really see the EEOC answering these types of questions, employers are going to have to do the best they can to evaluate," Batsch said.
It's worth noting that the agency has recognized the need for adjustment amid a pandemic — after all, it amended established rules to allow for workplace temperature checks and COVID-19 testing. And it broached the topic of future accommodations in a March 27 webinar. Employers need not grant requests for ongoing work-from-home accommodations after the COVID-19 crisis has ended if they are excusing workers from one or more essential functions. But such scenarios constitute "fact-specific determinations," said Jeanne Goldberg, EEOC's acting assistant legal counsel for the ADA.
If an employee was able to show that a telework arrangement did not prohibit the fulfillment of all essential functions while working from home during the pandemic, "the employer should consider any new requests [for the accommodation] in light of this information." As Goldberg noted, "the temporary telework experience could be relevant to considering the renewed request."
As employers wait for clarity, they may err on the side of generosity as they field accommodation requests. "If they do have the capabilities to work from home and complete their essential functions," Batsch said, employers "should think twice before denying that accommodation."
Correction: A previous version of this story misidentified the firm where Molly Batsch works. Batsch is an officer at Greensfelder, Hemker & Gale.