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Employers Not Required To Allow Post-Virus Telework: EEOC

By Anne Cullen · Sep 8, 2020, 4:09 PM EDT

Employers that leaned into telework during the COVID-19 pandemic are not automatically required to give disabled workers that same accommodation once the virus becomes less of a threat, the Equal Employment Opportunity Commission said in guidance unveiled Tuesday.

The Americans with Disabilities Act mandates that employers provide workers "reasonable accommodations" to allow them to do their job, and while telework sometimes fits the bill, the commission has made clear that a temporary shift online amid the health crisis doesn't force a company to accept all remote work requests down the road.

"The employer has no obligation under the ADA to refrain from restoring all of an employee's essential duties at such time as it chooses to restore the prior work arrangement, and then evaluating any requests for continued or new accommodations under the usual ADA rules," Tuesday's guidance said.

Even before the pandemic, workers and employers frequently sparred in court over whether employers violated the ADA by refusing to let disabled staffers telework.

While experts have speculated that businesses that transitioned their operations online at the height of the pandemic may have a tough time refusing such telework requests going forward, the new commission guidance suggests the landscape won't change.

Just because an employer "temporarily excused performance of one or more essential functions when it closed the workplace and enabled employees to telework for the purpose of protecting their safety from COVID-19," the commission said, it "does not mean that the employer permanently changed a job's essential functions, that telework is always a feasible accommodation, or that it does not pose an undue hardship."

The agency added that "fact-specific determinations" are required to suss out whether a telework strategy makes sense. 

However, the agency also noted in Tuesday's update that a virus-related transition to remote operations may be relevant in situations where an employee applied for this accommodation before the pandemic hit but was denied. If an employee in this situation renews the request, the commission said that the worker's ability to handle a remote arrangement could factor into the ultimate decision.

"The period of providing telework because of the COVID-19 pandemic could serve as a trial period that showed whether or not this employee with a disability could satisfactorily perform all essential functions while working remotely, and the employer should consider any new requests in light of this information," the commission said.

--Additional reporting by Braden Campbell. Editing by Jill Coffey.

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