After several years of remote work becoming the norm because of the pandemic, many companies are transitioning back to working in-person. This shift has come with mixed reviews from employees. Some are ready to be back in the workplace, while others have found a better work/life balance without having to leave their homes. Some employees are even pushing back on policies urging them to return to the physical workplace, and for good reason. According to the ABAJournal article, “Accommodation Awareness: As management retools remote work policies, ADA issues are expected,” by Annalyn Stolley Persky, “Employees with disabilities are at the forefront of this battle, arguing that remote work can be a reasonable accommodation under the Americans With Disabilities Act.” With this in mind, the following serves as an important refresher on the rights and responsibilities of both employees and employers under the Americans With Disabilities Act (ADA), particularly when considering workplace accommodations.
Employers are not allowed to ask about a job candidate’s disability status during the application process. They are, however, allowed to ask whether a candidate can perform the duties of the job with or without reasonable accommodation. Once given a job offer, an employer is allowed to require all employees hired for a given job category to pass a medical examination. That said, employers are not allowed to pick and choose who they require to undergo an examination. Once hired and working, employers are only allowed to require a medical examination or ask about an employee’s disability when doing so is directly related to and necessary for the job. Given that employers must be very careful about when and how they bring up an employee’s disability related limitations, it is typically an employee’s responsibility to self-disclose and request necessary reasonable accommodation. Once a request for reasonable accommodation is made, employers are permitted to ask for documentation about an employee’s disability and need for accommodation. The aforementioned article continues, “After that, the employer and the employee are expected to engage in what the EEOC describes as an ‘interactive process,’ in which they discuss and even find compromise on how best the employee can fulfill the essential functions of the job.”
Returning back to the main focus of this article, how do employers and employees determine whether or not remote work is a reasonable accommodation? Under the ADA, Employers are required to provide accommodations that allow employees with disabilities to perform essential job functions. Accommodations are considered reasonable as long as they do not cause undue hardship to the employer. The ADA defines undue hardship as an “action requiring significant difficulty or expense.” Based on these definitions, remote work is considered to be a reasonable accommodation when it allows an employee with a disability to complete all essential job functions and does not unreasonably burden the employer. When remote work is considered to be a reasonable accommodation to meet the needs of an employee with a disability, employers are obligated to grant this request. This is true regardless of an employer’s standard policy for remote work.
As more companies return to working in-person, employers must be flexible to accommodate those who are best able to work remotely due to the nature of their disability.