Remote Work as a Reasonable Accommodation Request

The “official” state of emergency in Oregon has ended and employees are returning to the office. However, the pandemic is not over. With that in mind, some employees may not be prepared to return to the office; perhaps they are at high-risk for COVID-19, or maybe they are afraid to return to the office due to concerns of contracting COVID. Because of this, employers may see an increase in COVID-19-related reasonable accommodation requests, specifically requesting remote/telework.

High-Risk Employees

Historically, individuals who have certain medical conditions that create an increased risk for severe COVID-19 illness may not qualify as having a disability under the Americans with Disabilities Act (ADA), if the condition does not “substantially limit” major life activities. However, at the beginning of the COVID-19 pandemic, the EEOC issued guidance that broadened the ADA’s protections to cover individuals with pre-existing medical conditions, even if they currently do not have a “disability” as that term is used under the act. This includes underlying conditions that may be a complicating factor as defined by the CDC, including chronic lung disease, diabetes (types 1 and 2), liver disease, moderate to severe asthma, obesity, and individuals who are immunocompromised.

The EEOC’s guidance also states that employees with disabilities that put them at high risk for complications of COVID-19 may request remote/telework as a reasonable accommodation to reduce their chances of infection during a pandemic.

Fear of COVID-19

Whether an employee who has a fear of returning to the workplace due to COVID-19 requires reasonable accommodation will also depend on if they have a disability. Remember, a disability includes mental health conditions that substantially limit a major life activity. If an employee has a condition such as anxiety, depression, PTSD, or another condition that factors into their fear of returning to work, it may be considered a disability and require a reasonable accommodation.

Reasonable Accommodations

Once an accommodation request is made or recognized, the employee and the employer must work together in what is known as the “interactive process.” The goal of the interactive process is to come up with a reasonable accommodation unless it would cause an undue hardship. An “undue hardship” is defined as significant difficulty or expense and refers to financial difficulty and reasonable accommodations that are unduly extensive, substantial, or disruptive, or those that would fundamentally alter the nature or operation of the business.

During the pandemic, some employees with disabilities are requesting remote/telework as a reasonable accommodation. Does that mean that the employer has to grant the request? First, an employer will want to require the employee to provide medical verification of their impairment to determine if it qualifies as a disability. If it does, then granting the request depends on numerous factors, including if there are other accommodations than remote/telework. Remote/telework may be one option for reasonable accommodation. However, when there are multiple accommodations available, the employer may decide on which accommodation to offer. This may include extra-social distancing measures, staggered shifts, alternate personal protective equipment, or a leave of absence. Additionally, employers do not have to offer remote/telework as a reasonable accommodation if it would create an undue hardship. Be aware, however, that if remote/telework has been allowed in the past and now it is no longer allowed, employers must have a legitimate reason for why it causes an undue hardship. For example, an employer may demonstrate that it has been holding off on offering a critical service that could not be done remotely during the pandemic, but due to fewer COVID-related restrictions, the employer is now able to offer those services again.

If you have questions about these types of requests, we’re here to help. Just reach out.