Working from home has become more normalized during the current pandemic, but telework has been a potential option for a worker with a disability for decades. Specifically, under federal anti-discrimination law, a covered employer must provide a reasonable accommodation that would allow an employee with a disability to perform their job, so long as it would not cause the employer undue hardship.
Under the right circumstances, telecommuting qualifies as such a reasonable accommodation.
The Americans with Disabilities Act (ADA) forbids employment discrimination against an individual with a disability by most employers with at least 15 employees. Part of this requirement is for reasonable accommodation. A successful failure-to-accommodate claim requires that the employee have a disability the employer knew about, that with reasonable accommodation the employee could do the essential functions of the job and that the employer did not allow such accommodations.
EEOC guidance on work from home as accommodation
While working from home during COVID-19 has been a way to protect everyone in the workplace from the coronavirus, the question of whether telework is a reasonable accommodation for a qualified disability under the ADA is a different one. But, we also now know that current videoconferencing technology expands the range of what can reasonably be done from home.
The U.S. Equal Employment Opportunity Commission (EEOC) issued written guidance on this exact issue well before the pandemic. The agency wrote that telework “may be a reasonable accommodation where the person’s disability prevents successfully performing the job on-site and the job, or parts of the job, can be performed at home without causing significant difficulty or expense [(undue hardship)].”
Other points in the guidance:
- Even if the employee prefers telework as accommodation, the employer may offer another effective option, if it exists, such as physical changes to the workplace, changes in schedules and others.
- Determining reasonable accommodation is very individualized and should be the product of an “interactive process” between the parties considering the disability and its limitations, the essential duties of the job and whether all of some could be done from home.
- Working from home may be part- or full-time.
Kentucky employees and employers may be locked in a battle over a failure-to-accommodate claim with the EEOC or Kentucky Commission on Human Rights (KCHR) (state law governs certain smaller employers than the ADA does) or a lawsuit. An experienced and knowledgeable employment law attorney knows how to advocate for their clients in front of the EEOC and KCHR.