Published on: Tue 17th Mar, 2020 By: Campbell Durrant, P.C.
Telecommuting or “telework” is defined in the Telework Enhancement Act of 2010 as, "a work flexibility arrangement under which an employee performs the duties and responsibilities of such employee's position, and other authorized activities, from an approved worksite other than the location from which the employee would otherwise work." While the Telework Enhancement Act of 2010 is only applicable to federal employees and it is not applicable to employees of local governments and private employers, it does provide some guidance for what it means to work remotely from an employer’s normal place of business. In practice, "telework" is a work arrangement that allows an employee to perform work, during any part of regular, paid hours, at an approved alternative worksite (e.g., home, telework center).
Given the recent emergency declarations at the federal, state, and local levels due to the identification of the COVID-19 virus by health organizations as a pandemic, employers across Pennsylvania are asking themselves whether they may or should permit telework for their employees. Of course, not all jobs are able to be undertaken remotely. This is particularly true for many services that local governmental employees provide, such as but not limited to public transportation, 911 call centers, law enforcement, paid firefighting services, correctional officers, the functioning of the courts, etc. For employees who provide these and other services, who many employers have likely designated as “essential employees” under the auspices of critical response or emergency preparedness plans, telework is likely not a viable option.
For the myriad of other positions employed by local governments and private employers, however, telework might be considered as an option. It is important for employers who are either considering it as an option or requiring telework to understand the risks associated with doing so before they implement it in their workplaces. First, the concept of telework is not a new one. It has been used in various forms by employers for a number of years, often in the context of an accommodation under the Americans with Disabilities Act (ADA). The focus in this area has most often been on whether an employee’s job duties include regular and predictable attendance at work, or interaction with other employees, as essential function(s) of the position. It has been important to resolve these questions because a reasonable accommodation under the ADA may include, among other things, job restructuring; however, it does not include removing essential functions from the position, as that would be per se unreasonable. In making these determinations, the courts have considered the EEOC’s informal guidance on the matter, which states that the need for in-person interaction and coordination of work and immediate access to information located only in the workplace may be legitimate reasons for an employer to deny telework as an accommodation. (Emphasis added).
In today’s environment, these issues are no less important; in fact, we believe that these concerns take on a heightened degree of importance so that employers are not “punished” in the future for their good deeds as they consider either mandating or permitting telework as a response to the pandemic. Because the ADA is enforced by the Equal Employment Opportunity Commission (EEOC), it is helpful to look to their guidance when considering telework in the current environment. In that vein, the EEOC has issued a guidance document entitled Pandemic Preparedness in the Workplace and the Americans with Disabilities Act (“the Guidance”). While it is not new (it was issued in October 2009 in response to the H1N1 outbreak), it remains in effect and it is referenced in more recent governmental guidance offered in response to the coronavirus pandemic. In the Guidance at Section III(B)(10), the EEOC states that an employer may encourage employees to telework as an infection-control strategy during a pandemic. It further states that employees with disabilities that put them at high risk for complications may request telework as a reasonable accommodation to reduce their chances of infection during a pandemic. The Guidance also makes it clear that an employer must continue to provide reasonable accommodations for employees with known disabilities that are unrelated to the pandemic, barring undue hardship. See the Guidance at Section III(B)(14). One of the examples cited is where an accountant with low vision has a screen-reader on her office computer as a reasonable accommodation. In the instance where an employer issues laptop computers to all accountants to enable them to telework during a pandemic, the employer must provide the accountant who was receiving the accommodation with a laptop with a screen-reader installed on it as well, unless the employer is able to establish an undue hardship.
What should employers take away regarding the concept of telework in the current environment? First, the ADA does not require employers to offer telework to all employees. There are simply some jobs which may not be performed remotely because doing so would require the removal of essential functions of the position. However, for those jobs where it does not require an employer to remove essential functions of the position, or where an employer might permit telework even if it means that one or more essential functions are removed in order to permit telework in the context of this pandemic, be aware that doing so with some employees, even if on a temporary basis, may make it more difficult for an employer to argue in the future that doing so as an accommodation would create an undue burden. We do not state this for the purpose of advising that an employer may not or should not provide telework opportunities. Rather, we state this so that when employers decide it is in their and their employees’ best interests to offer telework, that employers do so in such a way as to permit them to provide the accommodation to their employees in this time of crisis without unknowingly hampering their ability to return to their pre-pandemic work setting. We recommend that employers who are considering offering or requiring telework in response to the pandemic do so by including the following language in their communications to employees about the decision:
“Because of the extraordinary situation in the workplace caused by the coronavirus, you will be working remotely for a temporary period. We understand that you might not be able to perform all of your job’s essential functions during this temporary period because you will be working remotely.”
Communicating language such as this to those employees who employers permit them to telework will provide a basis for an employer to defend against an ADA claim based upon a denial of a request to telework that an employer may face in the future, once the threat of the coronavirus has passed, from an employee who hopes to engage in telework indefinitely, despite an employer’s contrary desire to permit that to occur.
Finally, while teleworking may not constitute a reasonable accommodation for a number of different employees as we have discussed previously, employers should not reject outright a request to do so as an accommodation. The need to engage in the interactive process with an employee who requests an accommodation is of utmost importance. If employers require further information from an employee to determine whether an accommodation is reasonable, they should seek it. Employers should keep the lines of communication open and if there is an alternative to the requested accommodation that is less burdensome, yet effective, they should be prepared to propose it to the employee.
