Posted by TStegall on 06/22/2020 12:00 am  /   COVID-19 Home Page Highlight, Telecommuting

Teleworking as an ADA Reasonable Accommodation in the Era of COVID-19

Jeff Weintraub, Partner, Fisher Phillips

(901) 483-3030 - [email protected]

SHRM-Memphis (6-16-20)

Teleworking as an ADA Reasonable Accommodation in the Era of COVID-19

                Is COVID-19 a disability under the ADA?  An impairment may be protected as an ADA disability if it results in a substantial limitation on a major life activity; for example, emphysema may or may not be a protected disability depending on whether it is a mild case of emphysema or one that substantially limits a major life activity (if an employee has an impairment that an employer perceives as a substantial limitation on a major life activity, that employee may be protected under the ADA).

                Coyly, the EEOC has resisted declaring whether being infected with COVID-19 is itself an ADA disability.  Is this because the Agency wants to keep employers nervous enough about COVID-19 that the employers won’t take precipitous action against infected employees? My own view is that COVID-19 itself does not ordinarily constitute an ADA-protected disability, although, of course, if the employee develops physiological disorders from the virus, such as serious heart problems or anxieties, then those problems may constitute a covered disability, especially where the employee is in a high-risk group.

                However, EEOC has declared that the virus constitutes a “direct threat,” thus permitting employers to bar positive-tested employees from the workplace.  Bear in mind that if the CDC or state/local public-health authorities decide a few months from now that the virus no longer poses a serious threat, then EEOC may change its position and declare that COVID-19 does not pose a direct threat under the ADA.

                Most employers likely will be cautious and assume that the employee has a covered disability.  Thus, the employer then will need to engage in the reasonable-accommodation process.

                Keep in mind that, under the ADA, employers are not required to reasonably accommodate covered disabilities, but rather to reasonably accommodate the limitations arising from the covered disability.  Also remember that, at least in theory, all limitations arising from disabilities can be accommodated, but employers are required by the ADA to offer only reasonable accommodations.

                An accommodation that won’t allow the employee to perform all the essential functions of the job, is not reasonable.  Thus, an employer is not required to permit an employee to work at home as a reasonable accommodation, unless the employee can perform all the essential functions of his job at home.  According to the EEOC:

An employer does not have to remove any essential job duties to permit an employee to work at home. However, it may need to reassign some minor job duties or marginal functions (i.e., those that are not essential to the successful performance of a job) if they cannot be performed outside the workplace and they are the only obstacle to permitting an employee to work at home.