By Nicholas J. Fiorenza, Managing Partner & PIA Association Counsel, Ferrara Fiorenza PC
Navigating through the required interactive process with disabled employees remains one of the most challenging aspects of human resources management. This process, a central part of compliance with the Americans with Disabilities Act, requires open and honest communication with an employee and sometimes their healthcare provider. These parties, working together, are to evaluate possible work accommodations which could allow the employee to perform essential job functions that would otherwise be precluded by a disabling condition. Unless the employer would suffer an undue hardship, such accommodation must be implemented.
Accommodations appropriate for consideration are as numerous and varied as the health conditions which underlie their need. It is difficult for many employers to manage the broad scope and enthusiastic willingness to work with a disabled employee intended by the process.
For many years, telework – working from home – was considered a possible reasonable accommodation, but its many drawbacks usually made restructuring an employee’s job to eliminate physical presence at work an unsustainable solution, especially in the long term. Physical presence at work has therefore been generally considered an “essential job function” that telework often prevented.
The experiences of operating through the pandemic, however, may have turned this analysis on its head. Born out of business necessity and creativity, many employers have established that workers can successfully complete their essential job functions from home, or really, any remote location. Increased acceptance of video conferencing and other technological solutions now call into question whether physically reporting to a worksite can, in many situations, truly be considered an essential element of a job. At the very least, employers that continue to assert that physical presence is always required should be prepared to convincingly go through the steps necessary to demonstrate this requirement.
The Equal Employment Opportunity Commission recently weighed in on the topic by issuing guidance concerning the pandemic’s long-term impact on anti-discrimination laws. One point raised in the guidance appears helpful to employers: “the fact that an employer temporarily excused elements of… essential functions when it closed the workplace and enabled employees to telework for the purpose of protecting their safety… does not mean that the employer permanently changed a job’s essential functions [or] that telework is always a reasonable accommodation…”
The guidance, however, goes on to emphasize the existing standard that reasonable accommodations are by necessity “fact specific determinations”. As a result of the pandemic, many employers have established the “fact” that telework can in many situations be a reasonable alternative to on site work.
So, if employers believe that on site presence is an essential job function, they are wise to incorporate this into their job descriptions. Further, thought should be given – and documented – as to why this requirement exists (real-time communication, immediate access to other personnel and materials, etc.). The burden will be on employers to establish why telework is not a tenable reasonable accommodation and/or why it creates an undue hardship for them.
For Human Resources Assistance: For more information on any of the above topics, or assistance with any employment-related matter, PIA members can contact me or Nick Fiorenza, Association Counsel, Ferrara Fiorenza PC, (315) 437-7600, firstname.lastname@example.org.
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