The Changing Workplace: Working from Home | Parker Poe Adams & Bernstein LLP

The Americans with Disabilities Act (ADA) requires covered employers, in the absence of undue hardship, to provide reasonable accommodation to an otherwise qualified person who meets the definition of disabled. A qualified person is one who, with or without reasonable accommodation, can perform the essential functions of the job. In the early days of the ADA, around the 1990s and 2000s, federal courts consistently dismissed claims that an employer failed to reasonably accommodate an employee by refusing to allow them to work from home. These courts have highlighted the importance of actually being present in the workplace, as well as the technological limitations of remote working for most jobs.

In recent years, federal courts have largely reconsidered these earlier cases. Improved communication technologies allow more seamless remote execution of many tasks. For many businesses, the COVID-19 pandemic has served as a beta test for the idea that their work can be done efficiently from anywhere. As a result, requests for remote work as ADA accommodations have increased, along with the employer’s legal obligation to seriously consider such requests.

So what if an employer receives a request from an employee to work from home due to a medical condition? First, the employer must determine whether the employee is disabled as defined by the ADA and the extent of the disability, usually by requesting detailed information from the employee’s medical provider. Once the disability has been defined and confirmed, the employer and employee must determine if remote work is a feasible accommodation at the employee’s request. An important note here is that the employee does not have the right to dictate what accommodation is provided if there is more than one suitable and reasonable alternative. The employer’s job is to determine if an accommodation is reasonable given all the facts and circumstances. This requires flexibility on the part of the employer, and mere inconvenience is not enough to create undue hardship to absolve the employer of its responsibility to accommodate.

For remote work, some jobs still require the employee to be in the workplace, at least some of the time. The employer could offer a hybrid work formula combining remote work and time spent in the office. If the employer accepts remote work accommodation, he must specify that this is not a permanent change in the organization of work. The employer should reserve the right to review the accommodation if the employee’s medical circumstances change or if business needs make the accommodation granted more feasible or reasonable. The entire accommodation process should be documented, along with the business reasons used to support any denial of the employee’s accommodation request.

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