Remote Working, Vaccines And Employer Obligations Under The Americans With Disabilities Act

Published date21 October 2021
Subject MatterEmployment and HR, Coronavirus (COVID-19), Discrimination, Disability & Sexual Harassment, Employment and Workforce Wellbeing
Law FirmPeckar & Abramson PC
AuthorMr Kevin O'Connor, Stephen E. Irving and Lauren Rayner Davis

The last eighteen months have brought tumultuous change for employers due to the COVID-19 pandemic. The pandemic has been a great disruptor, and has brought rules, regulations and related agency guidance that have served to overwhelm even the most conscientious and attentive employer. The welcomed arrival of COVID-19 vaccines has, in many respects, caused many employers even more confusion on how to deal with employee requests for accommodations, such as a request to telework.

With the rollout of vaccines nationwide and improving conditions which allowed for return to work policies, one area for employers to be aware of is the intersection of an employer's obligations under the Americans with Disabilities Act (as Amended) ("ADA") to address a request for a reasonable accommodation, and a request by an employee to telework. This alert is intended to address recent guidance and case law on this issue.

In years past, requiring full-time, in-office attendance was seen as an "essential function" of many jobs. There was often resistance to accommodations which departed from this norm and employers often took the position that accommodating a disability with remote work was unreasonable. With millions of workers having participated in a large, forced experiment to see if remote working would be productive on a full-time basis, many employees are of the view that it does, and are resisting a return to the office by asking for an accommodation to work at home.

For those employees who raise a disability as an impediment to returning to the office, and who seek an accommodation in the form of teleworking, an employer must be sure to engage in an interactive process to avoid potential liability. The ADA obligates an employer to make a "reasonable accommodation to the known physical or mental limitations of an otherwise qualified applicant or employee with a disability, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of its business." 29 CFR ' 1630.9. The Equal Employment Opportunity Commission ("EEOC"), which enforces the ADA, looks to whether the employer engaged with the employee in an interactive process with respect to their request for an accommodation.

The interactive process begins with a request. Requests may not always need to be formal or in writing, but it is advisable for employers to maintain policies and procedures regarding the form and process for accommodation requests to ensure that...

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