Employers are seeing a rise in employee requests to work remotely as a reasonable accommodation. It should come as no surprise, therefore, that the U.S. Equal Employment Opportunity Commission (EEOC) recently issued a guidance on when remote work may be required as a reasonable accommodation under the Americans with Disabilities Act (ADA). The guidance, which was jointly issued by the EEOC and the Office of Personnel Management (OPM), is directed at federal agencies and federal employees. However, it provides helpful insight into how the EEOC evaluates the issues, and practical guidance for all employers. 

There are several important takeaways for employers. 

Remote Work Is Not Automatically Considered a Reasonable Accommodation

Under the ADA, employers must provide reasonable accommodations to qualified employees with disabilities unless doing so would impose an undue hardship. The EEOC continues to recognize remote work as a potential reasonable accommodation when an employee’s disability prevents them from performing job duties in the workplace, but they can be performed remotely. The EEOC emphasizes that remote work is not automatically required simply because an employee requests it or it’s for the employee’s “personal benefit.” However, the widespread adoption of remote work during the pandemic may make it more difficult for employers to argue that physical presence is an essential function of certain jobs if the work was successfully performed remotely for an extended period.

Understand the Employee’s Restrictions

An important step in evaluating an employee’s request to work remotely involves understanding the employee’s work restrictions. To this end, employers may obtain medical documentation indicating the nature, severity, and duration of the impairment, and the activity or activities that the impairment limits. With this information, the employer should be in a better position to assess how those limitations may make it possible for the employee to perform the essential functions of the job remotely, but not in the workplace. 

Assessing Essential Job Functions

In determining whether remote work can be a reasonable accommodation, employers should conduct an individualized assessment that considers, among other business factors: 

  • the nature of the employee’s job duties
  • whether in-person interaction, supervision, or access to on-site equipment is essential
  • the extent to which the job has been successfully performed remotely in the past
  • whether productivity or service levels may be affected

Engage in the Interactive Process

As with any ADA accommodation request, employers must engage in a good-faith interactive process with the employee. Once the employer understands the employee’s work restrictions, remote work may be considered alongside other possible accommodations, such as modified schedules, reassignment of marginal tasks, or adjustments to the workspace. Employers are not required to provide the employees’ preferred accommodation if another effective accommodation is available.

Undue Hardship Considerations

Employers may deny a request for a reasonable accommodation if it would create an undue hardship. Relevant considerations include the nature and cost of the accommodation needed, the overall financial resources of the employer, the size of the employer and the effect on expenses and resources, the type of operation of the employer, and the impact of the accommodation on operations. The EEOC cautions that generalized concerns about productivity or supervision are unlikely to be sufficient if employees previously worked remotely without significant issues.

Key Takeaway

Remote work requests tied to disabilities are likely to receive increased scrutiny from the EEOC. Employers should avoid categorical denials of remote work and instead conduct individualized assessments to determine whether remote work would enable the employee to perform essential job functions without creating an undue hardship.

If you have questions about remote work accommodations and policies, please contact Labor & Employment team:

Nick Zaino
Partner
[email protected]
203.578.4270

Carmody’s Labor & Employment lawyers are dedicated to delivering practical counsel on the full range of employment issues to public and private employers and nonprofit entities of all sizes.

Authors: Nick Zaino is a partner at Carmody and co-leader of the firm’s Corporate & Business Group. Marc Dispenza is a third-year law student at Western New England University School of Law and is currently participating in an externship program at Carmody.

This information is for educational purposes only to provide general information and a general understanding of the law. It does not constitute legal advice and does not establish any attorney-client relationship.