Before the pandemic, it had long been understood that, in most cases, employers may validly view reporting to work as an essential job function. That is now a much more questionable proposition. Now that many industries have abruptly shifted towards a work‑from‑home norm, it is arguable that reporting to work can no longer be considered an essential job function of many jobs. If reporting to work is an essential function of a given job, then this means employees must be able to reliably report to work (with or without reasonable accommodation) or else they are not qualified for the job and receive no protection under the Americans with Disabilities Act. On the other hand, if reporting to work can no longer be considered an essential function of a given job, then an employer must not discipline employees whose disabilities make them unable to reliably report to work, provided that they can still complete all essential job functions from home, with or without reasonable accommodations. In other words, if reporting to work can no longer be considered an essential job function, then employers may be required to provide any reasonable accommodations that would enable a disabled employee to do their job from home rather than terminating or otherwise disciplining that employee for failing to report to work.
The EEOC has addressed this issue in recent guidance about how the pandemic impacts equal employment opportunity laws. Its guidance clarifies that the mere fact that working from home has been permitted during the pandemic does not create an automatic right to remote work as a reasonable accommodation: “The fact that an employer temporarily excused performance of one or more essential functions when it closed the workplace and enabled employees to telework for the purpose of protecting their safety from COVID-19, or otherwise chose to permit telework, does not mean that the employer permanently changed a job’s essential functions, that telework is always a feasible accommodation, or that it does not pose an undue hardship. These are fact‑specific determinations.” However, if the pandemic has forced an employer to invest in the possibility of working from home, and the employer has now learned how to operate effectively in a work-from-home model, then this will obviously have a substantial bearing on the “fact‑specific determinations” about whether reporting to work is an essential job function, whether it would pose an undue hardship to permit remote working, etc.
There is at least one lawsuit currently pending in federal court where the plaintiff is arguing that his employer was required to permit him to work from home as a reasonable accommodation, based in part on the new realities imposed by COVID-19 (Lin v. CGIT Systems, Inc.). In that case, employees were for a brief time allowed to work from home at the beginning of the pandemic, but were then required to return to work. Mr. Lin, a senior engineer, failed to do so, in part because of his disability (he suffered from high blood pressure, which made him subject to heightened risk from COVID-19). Mr. Lin’s Complaint asserts that it would have been a reasonable accommodation required by law to allow the plaintiff to continue working from home rather than reporting to work.
Practical Takeaway
Employers should not assume, without careful analysis, that they are not legally required to permit disabled employees to work from home if the employees can, with reasonable accommodations, be enabled to complete their essential job functions from home. If employers are faced with such requests, they should seek legal counsel before denying them—or risk facing a lawsuit similar to the Lin case.
If you have any questions, please contact:
- Brian Sabey at (720) 282-2025 or briansabey@wp.hallrender.com; or
- Your regular Hall Render attorney.
Hall Render blog posts and articles are intended for informational purposes only. For ethical reasons, Hall Render attorneys cannot—outside of an attorney-client relationship—answer specific questions that would be legal advice.
