Weighing whether to allow permanent telework as reasonable accommodation

Q         Our employee has filed an Americans with Disabilities Act (ADA) request with her psychiatrist to work from home permanently. Do we have to accommodate her? She already has performance issues, and no one else on her team is a permanent remote employee.

A   An employee’s request to telework permanently may fall under the ADA’s reasonable accommodation requirement even if you don’t allow other employees to work remotely. Any request to continue teleworking as a reasonable accommodation must be determined by engaging in the interactive process with the employee. If you want to require a disabled employee who has been working remotely to return to her normal work location, you must be prepared to explain why she can’t perform the essential job functions at home.

The ADA requires employers to provide reasonable accommodations to employees with disabilities so long as they would (1) allow them to perform their essential functions and (2) not cause an “undue hardship” (e.g., significant difficulty or expense) for the business.

In the pre-COVID-19 world, employers often rejected the idea of remote work as a reasonable accommodation, claiming it wouldn’t allow employees to conduct their essential functions and thus would cause an undue hardship for the company. After the coronavirus, however, the defense is much harder to establish because many employees were allowed to perform the majority of their tasks from home.