Unlock the Secrets of Remote Work Accommodations: EEOC's New Guidance Reveals What Every Employer Must Know

As employers increasingly require remote workers to return to the office, many are unsure how to handle telework accommodation requests. New federal guidance offers welcome clarity, providing a roadmap for private employers to navigate disability accommodations under the Americans with Disabilities Act (ADA).

What Happened?

The Equal Employment Opportunity Commission (EEOC) and Office of Personnel Management (OPM) issued a joint technical assistance document on February 11 with FAQs addressing telework as a disability-related accommodation for federal workers. This guidance discusses when an employer must provide an accommodation, when it can be modified or ended, and best practices for exploring reasonable accommodations and engaging in the interactive process.

5 Key Takeaways for Employers

1. Explains when telework may qualify as a reasonable accommodation, narrowing it down to three categories: participation in the application process, performing essential job functions, and enjoying equal benefits and privileges of employment.

2. Confirms that presence in the workplace can be an essential function for some jobs, such as those where essential functions cannot be performed remotely, jobs with interactive requirements, or jobs where supervision and teamwork are needed.

3. Encourages agencies to annually reassess the effectiveness and necessity of accommodations, especially when circumstances change, such as new operational needs, changes in the employee’s condition, or updated job requirements. Telework accommodations may be reassessed now that COVID-19-related special circumstances no longer apply.

4. Discusses how to navigate common issues, like when an employee provides inconsistent medical documentation, posts social media content that may contradict their claims, refuses to try in-office alternatives, requests anxiety-based telework, or cites difficult or lengthy commutes.

5. Telework accommodations do not need to be granted to help employees mitigate symptoms, manage their condition, or improve quality of life.

Reviewing and Approving Telework Accommodations

The employer is the ultimate decision-maker when it comes to the reasonable accommodation offered, especially when telework is one of several effective options. However, employers must engage in a good-faith interactive process.

Key aspects clarified by the EEOC include:

• Individualized assessment: Employers should conduct an individualized assessment rather than take a blanket approach to employee accommodation requests.
• Flexibility to reassess prior accommodation grants: Even if a telework accommodation was previously granted with insufficient documentation, employers may revisit their decision based on a full evaluation.
• Essential functions: Many employees stopped performing essential job functions during the COVID-19 pandemic when working remotely, but employers don’t have to continue allowing this.
• Employee documentation: Employees should explain why in-office accommodations are ineffective and provide medical documentation to support their claims.
• Anti-retaliation: Employers may not treat an employee unfavorably because they requested or previously received an accommodation.

5 Compliance Steps for Employers

Private employers should consider taking these steps in light of the new guidance:

1. Review and potentially revise current telework accommodation arrangements. Telework accommodations may be required in certain circumstances, but employers are permitted to reevaluate when there are changed circumstances.

2. Conduct an individualized assessment. This is a critical part of the interactive process and key to compliance. Don’t assume a particular request is unreasonable.

3. Document the process. Have employees put their requests in writing and have their treatment providers respond in writing to inquiries about the basis and necessity of the request.

4. Don’t forget about state law requirements. Many states have their own disability-related workplace laws which may be stricter than federal law.

5. Consult an attorney. Before denying significant accommodation requests, discuss options with experienced legal counsel to ensure compliance.