Quick Hits
- The EEOC issued FAQs to assist federal agencies in implementing President Trump’s return-to-office order in compliance with the Rehabilitation Act of 1973, the federal sector analog to the ADA.
- As private employers implement return-to-office policies, the EEOC’s FAQs provide useful guidance for managing telework accommodation requests under the ADA.
- Employers may re-evaluate existing telework arrangements for individual employees and modify or rescind them, depending on the availability and effectiveness of alternative in-office accommodations.
Key Points From the FAQs
The FAQs cover a wide range of topics related to telework as a reasonable accommodation for employees with mental and physical disabilities. They offer an illuminating roadmap of the EEOC’s position on a number of complicated issues that employers face. Below is a summary of some of the more significant points.
Employers should recognize when telework qualifies as a reasonable accommodation—and when it does not. Under the ADA, reasonable accommodations, including telework, must enable an individual to accomplish one of the following: (1) participation in the application process, (2) performance of essential functions, or (3) access to equal benefits and privileges of employment.
The EEOC explains that telework requested primarily for personal benefit, without serving one of these purposes, is not a reasonable accommodation. Furthermore, the EEOC states that “[w]hat the law does not require … is accommodations that only mitigate symptoms without also enabling the performance of essential functions.” (Emphasis in original). The EEOC goes on to explain:
“Some employees who request full-time or recurring telework assert that telework would help them manage their condition, mitigate their symptoms, or improve their quality of life. But these employees often do not explain how telework would also enable them to perform essential functions of their jobs. Possible symptom mitigation does not, by itself, establish an entitlement to telework as a reasonable accommodation.”
Employers may implement other effective accommodations instead of telework. As the EEOC also notes, when several effective accommodations are available, the employer has the discretion to choose which accommodation to provide, even if it is not the employee’s preference. In lieu of telework, other effective in-office accommodations may include assistive technology, modified equipment, environmental modifications (sound, smell, light, etc.), job restructuring, or modified schedules.
Employers may reevaluate telework accommodations. Employers need not continue an accommodation, including a telework accommodation, in perpetuity. Instead, employers may reevaluate and/or adjust an existing accommodation on a periodic or situational basis. Such reevaluation may be warranted in light of changes to the employee’s condition, job duties, the employer’s operational needs, or applicable law. If the reevaluation reveals that the employee no longer requires telework, or perhaps never did, the employer may rescind the accommodation.
The EEOC emphasizes that an employer that granted an accommodation that exceeded its obligations under the law may choose to discontinue such accommodation at any time. As the EEOC notes, “To hold otherwise would see an [employer] ‘punished for its generosity.’”
Employers may need updated medical information to reevaluate telework accommodations. Whether such information is required may depend on the circumstances. If the employee initially provided sufficient medical information, the employer may need only to confirm that the information still is accurate. However, the employer may have approved telework accommodations without sufficient information or the employee’s condition may have changed such that updated medical information is necessary. The EEOC notes that an employer that previously accepted insufficient documentation “does not forfeit its option to revisit the issue and make a new decision.”
Employers may take mitigating measures into account. Employers may ask healthcare providers about mitigating measures or self-accommodations that could enable in-office work. The concept of “reasonableness” in the accommodations process may involve a comparison of relative cost between the employer and employee; it may be unreasonable to provide a telework accommodation that is less than optimal for an employer’s operations when reasonable and effective self-accommodation measures are available.
Employers may consider conflicting or contradictory evidence. Employers may consider reliable evidence that conflicts with an employee’s asserted need for telework, including social media activity or other observations of employee conduct inconsistent with the reported limitations). In addition, if the employee and/or the healthcare provider provide insufficient information, an employer may require that a healthcare provider of its choice examine the employee in order to assess a telework accommodation’s necessity.
Employers need not remove essential functions. While employers temporarily may have excused employees from performing essential functions such as in-office attendance or enabled telework during the pandemic, doing so did not permanently alter a position’s essential functions or establish telework as always feasible. In-person presence may be essential for many jobs—especially interactive roles that require supervision and teamwork. Determining whether in-person attendance is essential for a particular job requires a case-specific assessment.
Consider testing in-office accommodations. If an employee claims that a particular in-office accommodation will be ineffective, employers may want to ask the employee to provide a detailed explanation with supporting evidence. If the employer reasonably believes in—and the available evidence supports—the likely effectiveness of an in-office accommodation instead of telework, the employer may require the employee to try the in-office accommodation. If the in-office measure is ineffective, employers may reconsider full-time or recurring telework, without removing essential functions or incurring undue hardship.
Noncompliance may be subject to discipline. An employee who refuses to report to the office may be considered absent without leave. However, employers first should ensure the employee understands why telework is not or is no longer available and invite suggestions for in-office alternatives. If the employee still refuses to return, the employer may discipline the employee in accordance with the employer’s attendance policy, consistent with its discipline of similarly situated employees.
Telework is not necessarily required to address in-office anxiety. Although employees with mental health impairments may experience workplace-related anxiety, the EEOC explains that the ADA “does not create a general right to free from all discomfort and distress in the workplace, including anxiety.” The relevant issue is whether the symptoms “impose a material barrier” to meeting the essential function of in-office presence or the enjoyment of equal benefits and privileges of employment. The EEOC suggests that anxiety is not a material barrier if employees are able to meet performance standards on-site. Even if anxiety is a material barrier, other in-office accommodations may be effective, and telework is mandated only if they are not.
A difficult or lengthy commute does not warrant a telework accommodation. The EEOC states that “[I]n most cases, an employer has no duty to help an employee with a disability with the methods and means of [their] commute to and from work, assuming the employer does not offer such help to employees without disabilities.” However, the employer may need to provide accommodations such as flexible scheduling to enable the employee to commute effectively. Temporary telework may be reasonable to allow the employee time to relocate closer to the workplace or make alternative commuting arrangements.
Conclusion
Although the EEOC’s FAQs are directed at federal agencies and constitute non-binding technical assistance, private employers implementing return-to-office mandates or dealing with telework requests more generally may treat these FAQs as practical guidance for minimizing risk in handling such requests.
Ogletree Deakins’ Leaves of Absence/Reasonable Accommodation Practice Group will continue to monitor developments and will provide updates on the Employment Law, Return to Work, and Leaves of Absence blogs as additional information becomes available.
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