Teleworking in a Post-COVID World

Do I have to return to office work?

It is no secret that the American workforce developed a preference for working from home during the COVID-19 pandemic. In a September poll conducted by Monster, two thirds of the 1,806 workers polled stated they would quit if forced to return to a full-time in-office schedule. But that does not mean every employer is necessarily going to offer telework or hybrid working options. So, is there anything that you can do if your office is requiring you to return to office work? Yes, but only in certain circumstances. Teleworking can be an accommodation if working in office is not an option based on a disability.

Teleworking has been contemplated as an accommodation by the Equal Employment Opportunity Commission since February 2003, well before the COVID-19 pandemic began. The EEOC states that “allowing an employee to work at home may be a reasonable accommodation where the person’s disability prevents successfully performing the job on-site and the job, or parts of the job, can be performed at home without causing significant difficulty or expense.”

Let’s break that down.

What does it mean to have a disability?

The ADA (Americans with Disabilities Act Amendments Act of 2008) defines a disability as “a physical or mental impairment that substantially limits one or more major life activities of such individual.” Major life activities include caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working, as well as the operation of major bodily functions (e.g., immune system, bladder system). So, mental illnesses (e.g. bipolar, depression, schizophrenia) and physical illnesses (e.g. cancer, diabetes, epilepsy) are disabilities under the ADA. Essentially, if you have been diagnosed with a chronic illness (i.e. one that is not transient or short-lasting by nature), you likely have a disability under the ADA.

If I have a disability, can I work from home? 

It depends.

Telework is not an option for every individual with a disability. In order for telework to qualify as a reasonable accommodation, your disability must prevent you from successfully performing the job on-site. For example, in Johnson v. McMahon, 2020 U.S. Dist. LEXIS 256532 (N.D. Ga. Jan. 7, 2020), the Court was willing to consider the possibility of teleworking as a reasonable accommodation for an individual who suffered from chronic migraines so that she could better control the light and sound in her environment (though the Court did not ultimately decide whether the accommodation was reasonable).

However, an employee’s request for telework as a reasonable accommodation will always be measured against an employer’s ability to provide such an accommodation. The EEOC has stated strictly that an employer’s decision to allow employees to telework during the COVID-19 pandemic “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.”

Often, the courts will engage in a fact-intensive inquiry that balances the interests of the disabled employee against the employer. Factors playing a role in the courts’ decisions are often job descriptions, existing company-wide work-from-home policies, and other available accommodations. Some jobs (e.g., cashiers, food servers, truck drivers) simply cannot be performed at home and thus, no matter the disability, an employer will not be required to provide teleworking as an accommodation. However, there are many jobs where some or all the functions can be performed at home. In these situations, the EEOC recommends that employers consider the need for face-to-face interaction, the need for supervision, and the need for access to workplace materials. But, the EEOC also discourages denying a telework accommodation simply due to the need to contact and coordinate with other employees because “meetings can be conducted effectively by telephone and information can be exchanged quickly through email.”

How do I ask my employer for a telework accommodation?

                Per the ADA, employers are mandated to engage in an “interactive process” with any employee who requests an accommodation. Under Eleventh Circuit precedent, a request does not need to be formal, but employees are required to inform their employer that they have a medical condition that requires some change in the way their job is performed. Gatson v. Bellingrath Gardens & Home, Inc., 167 F.3d 1361, 1364 (11th Cir. 1999). Then, the employer may ask the employee to explain why the disability is limiting their ability to work in the workplace and can even request documentation about the disability. Ultimately, the employer will either grant the accommodation, modify the accommodation, or deny the accommodation.

                Notably, engaging in the accommodation process is protected. The ADA prohibits employers from discriminating against their employees on the basis of disability and prevents employers from retaliating against their employees for requesting accommodations or otherwise participating in an interactive process. This means your employer should not take an adverse action (e.g., demotion, discipline, or termination) against you after you disclose your disability or ask for an accommodation. If they do, you may have legal recourse.

                If you believe your employer has failed to engage in an interactive process regarding your accommodation, has wrongfully denied a telework accommodation, or any reasonable accommodation, or has retaliated against you for requesting an accommodation, please reach out to the attorneys at Legare, Attwood & Ragan, LLC. Legare, Attwood & Ragan, LLC specializes in representing employees who have suffered civil rights violations, including racial discrimination, gender discrimination (including pregnancy, sexual harassment, sexual orientation and transgender discrimination), religious discrimination, national origin discrimination, disability discrimination, as well as those who have Family Medical Leave Act claims, overtime and job misclassification claims, harassment, and breach of contract or wrongful termination claims.  If you want more information about your unique situation, we’ll be glad to see if we can help.  (470) 823-4000 | law-llc.com