Tread lightly when modifying pay rates as part of a temporary accommodation

Q         We’re planning to allow employees with underlying health conditions to telecommute as a temporary reasonable accommodation during the COVID-19 pandemic. Based on our assessment, however, they could perform only 50 percent of their essential functions from home. Can we modify their pay rate accordingly?

A   Even though the answer is likely yes, employers should tread lightly and contact their employment attorney if this situation arises.

If an employee cannot perform a job function because of a disability, the employer must make “reasonable accommodations” for her. An employer never has to provide an accommodation, however, that would cause undue hardship (significant difficulty or expense), which includes removing an essential function of the job.

If an employee cannot meet a specific qualification standard because of a disability, the Americans with Disabilities Act (ADA) requires the employer to demonstrate the importance of the function by showing it is “job-related and consistent with business necessity.” This requirement ensures the qualification standard is a legitimate measure of an individual’s ability to perform an essential function of the specific position she holds or desires. If an employer cannot show a particular standard is “job-related and consistent with business necessity,” it cannot use the standard to take adverse action against an individual with a disability.

Q         Can a person receiving unemployment benefits refuse to accept a job offer if it’s 25 miles from her home?