Does an Employer Have to Allow Teleworking for Employees Who Are At Risk for COVID-19?
In some situations, yes. An employer may have to allow an employee to telework instead of reporting back to the office if the employee can show that a disability requires teleworking as a reasonable accommodation.
Whether teleworking is considered to be a reasonable accommodation depends on the nature of the disability and the specific job duties an employee has. To date, the Equal Employment Opportunity Commission (EEOC) has not provided detailed guidance on when employers are required to allow an employee to telework in light of the COVID-19 pandemic. The EEOC has noted that what constitutes a reasonable accommodation is fact specific to each employee, and that allowing an employee to telework during the coronavirus crisis does not necessarily mean that teleworking must continue once the crisis has ended. But there will likely be situations where teleworking does constitute a reasonable accommodation for an employee who may be especially susceptible to COVID-19. If it does, and the employer doesn’t allow it, then the employer may be held accountable.
In recent months, millions of American workers have been allowed to work from home (“teleworking”) in an effort to prevent the transmission of the coronavirus. Companies, however, will slowly begin recalling employees to job sites and offices as the COVID-19 pandemic winds down. For Americans with serious underlying health conditions, returning to work can be extremely dangerous as new cases of coronavirus are still being reported every day. Employers who require these vulnerable employees to return to the office may be violating the Americans with Disabilities Act (ADA).
What is the Americans with Disabilities Act?
The ADA is a federal law which prohibits employers from discriminating against workers who have a covered physical or mental disability. Under the ADA, an employer cannot layoff or terminate an employee due to a disability. An employer also cannot refuse to hire or promote someone due to a disability. If an employer unlawfully discriminates, the ADA provides the disabled employee with legal options to stop the discrimination and to force the employer to pay for lost income and other damages.
What disabilities are protected by the ADA?
A covered disability is defined as any health condition which causes an impairment that substantially limits at least one major life activity. In the context of the COVID-19 pandemic, we know that there are some health conditions that make an individual more susceptible and vulnerable to the coronavirus. According to the CDC, early reports indicate that more than 70% of patients admitted to the hospital due to the coronavirus had a serious underlying health condition.
The most common underlying health conditions seen in patients affected by the coronavirus have been diabetes, chronic lung disease (such as COPD, asthma, and emphysema), heart disease, kidney disease, liver disease, and those with compromised immune systems. Employees who have one of these serious health conditions are likely protected by the ADA. It should be noted that pregnant women are also at a greater risk of developing serious complications due to the coronavirus and may be protected under other federal and state laws.
Does my employer have to allow me to telework if I want to?
The ADA requires employers to provide “reasonable accommodation” to employees with a covered disability. The COVID-19 pandemic forced many employers to allow their employees to telework from home, and during this process, many employees discovered that they can do their jobs from home just as well as in the office. It is therefore likely that teleworking – for many employees with the health conditions discussed above – will be considered a reasonable accommodation. For this reason, employers who do not allow such employees to continue teleworking are likely in violation of the ADA.
If an employer demotes, layoffs, or otherwise terminates an employee with a serious health condition for not returning to the office, the employer runs the risk of being sued by the employee for violating the employee’s rights under the ADA.
What if I’m disabled and my employer doesn’t provide reasonable accommodations for me?
You may be able to file a lawsuit and recover significant monetary damages. Of course, the first step in pursuing an employer under the ADA is to contact an experienced employment law attorney. An attorney can determine if an employee has a disability covered by the ADA and whether teleworking would likely constitute a reasonable accommodation for the particular employee. An attorney can also help an employee weigh the pros and cons of bringing a lawsuit against the employer.
Before a lawsuit can be filed in court, an employee is required to file a charge of discrimination with the EEOC. The EEOC is federal agency that enforces employment discrimination laws. It is important to note that federal law imposes a strict deadline on when a charge of discrimination must be filed. Therefore, an employee who has been discriminated against should contact an employment law attorney as soon as possible. In some cases, the EEOC will litigate the case against the employer itself. In most cases, the EEOC will issue a right to sue letter after investigating the claim. Once an employee receives the right to sue letter, the employee may file a lawsuit in federal court alleging a violation of the ADA.
Of course, many ADA claims are successfully resolved before any lawsuit is filed. Contact our firm now if you think you may have a disability that requires teleworking during the COVID-19 pandemic. We will let you know if we can help.