Last week, North Carolina entered into phase three of its COVID-19 reopening process. As more businesses try to resume normal operations, a number of clients have asked about employees who express continuing concerns over returning to the workplace. These employees say that they have been effectively working from home and request that this arrangement continue for the foreseeable future. Often these requests are accompanied by doctor’s notes stating that the employee is at a medically high risk for COVID-19 complications.

How should employers evaluate these requests? Last month, the Equal Employment Opportunity Commission amended its COVID-19 guidance to explain that just because an employer has permitted telework during the pandemic, it is not required to do so going forward. The major issue for employers to consider when reviewing employee telework requests is whether this constitutes a reasonable accommodation under the Americans with Disabilities Act. If an employee has a protected disability, the employer may have to provide accommodations that effectively allow the employee to perform essential job functions, and that do not create an undue hardship for the company.

Is susceptibility to COVID-19 complications an ADA disability? If the employee’s only risk factor is age, the answer is no. If the employee has an underlying medical condition, the answer is more complicated. While such conditions are likely ADA disabilities, does risk of complications trigger ADA accommodation requirements for a workplace with no elevated COVID-19 exposure risk? An employer could make a technical argument that this is outside the scope of the ADA’s accommodation mandate, but the more conservative approach is to evaluate the request as the employer would any ADA job modification request.

Is telework a reasonable accommodation under the ADA? It depends. As we have learned over the past eight months, technology allows many employees to effectively perform their jobs away from the workplace. There are certainly many jobs where this is not the case. Work that requires active supervision of personnel or operations at the worksite may not be amenable to telework. 

The more difficult situations arise where the employer is concerned about the long-term effects of telework on things like travel, business development, mentoring, collaboration, and teamwork. These issues are more difficult to quantify. But in many situations, they provide legitimate reasons for an employer to conclude that employees cannot perform essential job functions from home.

As with any ADA accommodation analysis, the employer should thoroughly document its evaluation of the request. This evaluation should include discussions with the employee about how he or she expects to meet work needs while away from the office. If possible, the employer should also quantify the anticipated costs associated with the telework request. If the request is granted, the employer should explain that it reserves the right to reevaluate the effectiveness of the arrangement depending on business circumstances.

Employers may be reluctant to allow continuing telework or may suspect that employees simply prefer to work from home. However, when presented with medical information justifying the telework request, employers should carefully evaluate the request before responding.