How to Respond to an Employee’s Request to Work from Home as an Accommodation

Guest Blog by Kathlyn Perez, Perez Law LLC

www.perezlawllc.com; https://www.linkedin.com/in/kathlyn-perez-bethune-jd-a2b367b0/

Starting in March 2020, employees all over the country were forced to work from home due to safety concerns related to COVID-19. After being allowed to work from home for a long period of time, many employees - including those with disabilities - have found it is easier to work from home and would like to continue to do so. While an employer may require employees to return to the office as soon as it is safe, it must comply with the Americans with Disabilities Act in considering and responding to a disabled employee’s request to work from home as a reasonable accommodation.

An employee’s request for an accommodation need not use any special words. If an employee with a disability tells you that he or she believes their disability symptoms or limitations are relieved while working from home and they would like to continue working from home, that is likely sufficient to constitute a request for accommodation under the ADA triggering the employer’s obligation to engage in what is called the “interactive process.”

The interactive process is an informal dialogue between the employer and employee intended to identify the employee’s workplace limitations and explore whether the employer may provide a reasonable accommodation that allows the employee to perform the essential functions of his or her position and does not pose an undue hardship on the business or create a direct threat.

It is important to remember that the employee must still be able to perform the essential functions of his or her position; otherwise, he or she is not a “qualified individual with a disability” under the law. For a remote work request for accommodation, the employee must be able to perform the essential functions of the job from home for the employer to be required to consider the accommodation.

What is an “essential” function? It is the basic job duties that an employee must be able to perform. Factors to consider in determining if a function is “essential” include whether the reason the position exists is to perform that function; the number of other employees available to perform the function or among whom the performance of the function can be distributed; and the degree of expertise or skill required to perform the function. Those functions that are not “essential” to the job are considered “marginal.” While an employer need not eliminate an essential function to allow an employee to work from him, an employer may be obligated to eliminate, modify, or shift functions that are only marginal, so long as doing so would not cause an undue hardship on the business.

Just because an employee worked from home during the height of the pandemic does not necessarily mean that they were performing all of the essential functions from home. For example, an administrative assistant whose responsibilities include printing documents, organizing binders, setting up conference rooms, etc. likely did not need to do those functions while the entire workforce was working from home. Now that the remainder of the office is expected to be at work, if those functions are indeed essential to the position, the employer may not be required to grant the accommodation. If, however, these duties are simply marginal and other office staff can easily take over these functions, the accommodation may still be reasonable under the law.

If there is more than one equally effective option for an accommodation, the employer may choose the accommodation. For example, if an employee states (and their doctor supports) a need to work in a room with dim lighting and little noise to accommodate migraines, then an alternate effective accommodation to working from home may be to provide a suitable workspace with dim lighting and little noise. Likewise, if an employee requests to work from home because their office is on the second floor and they cannot navigate the stairs, then an alternate effective accommodation might be moving the employee’s office to an accessible space on the first floor.

The interactive process requires an honest and earnest effort on the part of both the employer and the employee to brainstorm suitable options that allow the employee with a disability to perform their job effectively. Employers should be careful in navigating requests for accommodation and every case must be analyzed individually based on the given circumstances. When in doubt, seek advice from an employment lawyer who can help your business avoid the headaches of a lawsuit claiming that you failed to reasonably accommodate an employee’s disability.

Kathlyn Perez is the founder of Perez Law LLC, an employment law and consulting firm. Kathlyn assists businesses in high-risk industries on ADA compliance through assessment, training, and case management. Kathlyn also negotiates employment agreements, non-competes, separations and severances, conducts internal investigations, and provides policy advice, review, and specialized training.