Reasonable accommodations in the COVID-19 era: A cautionary tale

As the pandemic lingers on, employers are facing challenges as they bring employees back to the workplace. Some employees may not want to return because they fear contracting the virus in the workplace. Others may have concerns about returning to the office because they have a disability that increases the risk of severe illness if they contract COVID-19. Yet, others may simply prefer working from home for purely personal reasons unrelated to COVID-19. Employers have a difficult task in evaluating when they are obligated under the Americans with Disabilities Act (ADA) to allow employees to continue to working remotely.

Fortunately, last last year employers received much needed guidance from the Equal Employment Opportunity Commission (EEOC) that will assist in analyzing whether an employer must continue to permit employees to work from home. In its latest guidance, the EEOC explained that employers are not required to continue to allow employees to telework simply because telework was previously allowed in response to the pandemic. The EEOC explained that “[t]he 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.”

Related: 4 ways to keep employee accommodation conversations compliant

While employers do not have a duty under the ADA “to refrain from restoring all of an employee’s essential duties at such time as it chooses to restore the prior work arrangement,” employers still must evaluate any requests for a new accommodation or continued accommodation under the traditional ADA rules. In other words, employers must engage in the interactive process to determine whether they are able to accommodate an employee’s request for accommodation, including telework. However, allowing past telework in response to COVID-19 does not require an employer to continue telework based on past precedent alone.

The recent case, Peeples v. Clinical Support Options, Inc, illustrates the need for employers to engage in the interactive process when they receive a request from an employee to work from home.

In Peeples, Clinical Support Options (CSO) allowed its employee, Gabriel Peeples, to work remotely at the beginning of the pandemic. Peeples suffers from asthma and was at a higher risk for serious illness if Peeples contracted COVID-19. Peeples was able to perform all the essential duties of his position along with other job-related tasks while teleworking. In June 2020, CSO asked Peeples to return to the office, contending that it needed the managers in the building and supporting operations.

Peeples returned to the office but requested that CSO provide him with an air purifier, personal protective equipment (“PPE”), masks, hand sanitizer, and wipes. Upon Peeples’ return, CSO provided Peeples with the requested items. However, Peeples alleged that he could not effectively perform his job while wearing a mask and that he feared exposure to the virus because others in the workplace were not wearing masks. After a few weeks, Peeples requested that he be allowed to work from home, along with a letter from his allergist recommending telework. Peeples’ supervisor also provided a letter in support of Peeples’ request stating that Peeples could perform his essential duties from home. Peeples’ request was denied again without explanation.

Peeples sued CSO and sought a preliminary injunction requiring CSO to permit Peeples to telework for the duration of the COVID-19 pandemic. Peeples contended that CSO did not conduct an individualized assessment as to whether the essential functions of his job could be performed remotely, nor did CSO establish that it would be unduly burdened if it allowed Peeples to telework. The Court granted Peeples’ request for injunction allowing Peeples to work from home.

Peeples is a cautionary tale for employees. Employers who are bringing employees back to the office need to be mindful of accommodation requests from employees and make sure that they engage in the interactive process before denying a request for an accommodation. The Peeples’ case demonstrates that simply saying all employees must return to the office because that is the employer’s preference is not sufficient.  Employers need to establish that the employee who is requesting telework either cannot perform all of their essential functions while teleworking or that continuing to allow an employee to telework poses an undue hardship.

Recommendations

While the EEOC has advised that an employer does not have to assume that an employee’s request to work remotely is a reasonable accommodation (even though the employer previously allowed the employee to work remotely), employers still need to engage in the interactive process when evaluating an employee’s request to telework. Below are some tips for employers dealing with these types of reasonable accommodation requests.

First, determine whether an employee has a disability and whether that disability puts them at higher risk for serious illness or death if they contract COVID-19. Also, ascertain whether the employee is asking for the accommodation due to their own disability or because they are concerned about potentially exposing a family member to COVID-19. The ADA protects employees who are seeking an accommodation due to their own disability. The ADA, however, does not require an employer to accommodate an employee without a disability based on the disability-related needs of a family member or other person with whom they are associated.

Also, pregnant workers may also be entitled to an accommodation if they have a pregnancy-related medical condition. Reasonable accommodation due to a pregnancy-related medical condition are evaluated under the usual ADA rules. Further, the Pregnancy Discrimination Act “specifically requires that women affected by pregnancy, childbirth, and related medical conditions be treated the same as others who are similar in their ability or inability to work.” Thus, a pregnant worker may be entitled “to job modifications, including telework, changes to work schedules or assignments, and leave to the extent provided for other employees who are similar in their ability or inability to work.”

Second, assess whether the employee is able to perform all of their essential function while working remotely. The EEOC stated in its guidance that an employee’s temporary remote work experience may be relevant and that employers should consider this temporary teleworking experience as a “trial period” to be used when evaluating whether an employee can satisfactorily perform all essential job functions. Thus, during this “trial period,” employers should document the employee’s performance issues so that if an employee asks for a teleworking accommodation, the employer can support its position (if it denies the request) that teleworking is not a reasonable accommodation.

Third, if an employee is able to perform all their essential functions while working remotely and was not having performance issues during the “trial period,” then the employer will need to establish that working remotely would be an undue hardship on its business.

Lastly, when employers bring employees back to the work place, they need to make sure that they have adequate safety protocols in place and are following current guidance from the Centers for Disease Control and Prevention (CDC) and other health authorities. One of Peeple’s’ allegations was that CSO was not following its own safety protocols, e.g. not requiring people in the workplace to wear masks. Thus, to refute this concern, employers need to establish that they are following current guidelines for providing a safe workplace so that if they offer other accommodations that would require the employee to come into the workplace, their suggested accommodation is not rejected due to inadequate safety measures in the workplace.

Conclusion

Employers are likely to continue to get requests from employees to be allowed to continue working from home. Employers need to ensure that they engage in the interactive process to determine if they can grant this accommodation request. If they are currently allowing employees to work remotely and they wish to deny an employee’s request to continue teleworking, they will need to establish that the employee is not able to perform all of their essential duties at home or that it creates an undue hardship on the business.

Will Stukenberg is a Partner at Porter Hedges LLP in Houston.  He is an experienced labor and employment practitioner who has litigated virtually every type of workplace dispute in numerous forums, with a particular emphasis on wage and hour matters. He routinely functions as a member of his clients’ legal department, and companies of all sizes call on him for everything from day-to-day employment counseling to complex employment litigation.

Laura Alaniz is a Partner at Porter Hedges LLP in Houston.  She focuses on representation of management in all aspects of labor and employment law matters.  As a litigator, Laura utilizes her experience to provide guidance to her clients on how to avoid litigation and minimize their risk of claims.  Laura is Board Certified in Labor and Employment by the Texas Board of Legal Specialization.