As employers in South Carolina begin resuming their normal in-person operations, many are finding that getting their employees back into the office is a challenge. While some employees enjoy the work environment and are ready to go back, many have become accustomed to working from home during the COVID-19 pandemic.
In some cases, employees are seeking to work from home as a “reasonable accommodation” for a disability. Under the Americans with Disabilities Act (ADA), employers with 15 or more employees must provide reasonable accommodations to employees who need them in order to perform the essential functions of their jobs. This requirement applies as long as providing a reasonable accommodation does not impose an undue hardship on the employer or the operation of the employer’s business. As the U.S. Equal Employment Opportunity Commission (EEOC) explains:
“Reasonable accommodations are adjustments or modifications provided by an employer to enable people with disabilities to enjoy equal employment opportunities. Accommodations vary depending upon the needs of the individual applicant or employee. Not all people with disabilities (or even all people with the same disability) will require the same accommodation.”
So, when is working from home a reasonable accommodation for a disability, and when must an employer allow an employee with a disability to work from home?
Is the Employee Disabled?
When an employee requests to continue working from home due to a claimed disability, the first question that must be answered is: Is the employee disabled? While employers must give due consideration to all requests for reasonable accommodations, this does not mean that they must accept employees’ claims of disability on blind faith.
With respect to current employees, employers “may make disability-related inquiries and require medical examinations only if they are job-related and consistent with business necessity.” This means that, generally speaking, employers may make disability-related inquiries and require medical examinations for purposes of assessing an employee’s request for a reasonable accommodation that would impact the employer’s operations. Disability-related inquiries include (but are not limited to):
- How did the employee become disabled?
- What is the nature of the employee’s disability?
- How severe is the disability?
- Does the employee have medical documentation of his or her disability?
- What impairments do the employee’s disability cause?
When making disability-related inquiries and requiring medical examinations, employers in South Carolina must adhere to a documented set of policies and procedures. Failure to do so will invite claims of harassment and discrimination, and even employers that have legitimate concerns could struggle to defend against allegations of disparate treatment. Employers should document their efforts to evaluate individual employees’ disability claims as well, as this will allow them to demonstrate consistent application of their policies and procedures if necessary.
Is Working from Home a Reasonable Accommodation?
If an employee has a disability that impairs his or her ability to work, then the question becomes: Is working from home a reasonable accommodation? The ADA recognizes three categories of reasonable accommodations, only one of which is relevant to an employee’s request to work from home:
“Modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified individual with a disability to perform the essential functions of that position.”
For working from home to constitute a reasonable accommodation, working from home must “enable” the employee “to perform the essential functions” of his or her job. Thus, if an employee is equally capable of performing his or her job in the office and at home, then working from home is not a reasonable accommodation. Likewise, if working from home is tangentially beneficial or preferable but does not impact an employee’s performance of his or her essential functions, then working from home is not a reasonable accommodation for the employee’s disability.
When might working from home be a reasonable accommodation? For employees who worked on-site before the pandemic, proving that working from home is now a necessity is likely to prove challenging. However, if an employee suffered an injury during the pandemic, or if an employee had a pre-existing condition that worsened during the pandemic, these could feasibly be scenarios in which an employee could seek to work from home as a reasonable accommodation. Likewise, having a condition that places an employee at heightened risk for serious complications in the event of COVID-19 infection could reasonably justify a request to work from home under the ADA.
Importantly, even if working from home is a reasonable accommodation for an employee’s disability, an employer is not required to permit the employee to work from home if doing so would impose an undue hardship on the employer. This is judged on a case-by-case basis taking into account “factors such as an employer’s size, financial resources, and the nature and structure of its operation.”
Are Other Reasonable Accommodations Available?
Even if working from home is a reasonable accommodation for an employee’s disability, and even if allowing the employee to work from home would not cause undue hardship, an employer is still not required to permit the employee to work from home if other reasonable accommodations are available. Under the ADA, employers do not have to grant employees’ requests for specific reasonable accommodations.
So, for example, if an employer can modify an employee’s workspace to facilitate the performance of the employee’s essential job functions, then this is a permissible solution. Allowing an employee with diabetes to take extra breaks to eat and test his or her blood sugar and insulin levels may be a reasonable accommodation as well. Employers are entitled to balance their interests with those of their employees—they just need to do so carefully to make sure they do not run afoul of the ADA.
Speak with a South Carolina Employment Lawyer at Gignilliat, Savitz & Bettis LLP
Gignilliat, Savitz & Bettis LLP is a South Carolina employment law firm that exclusively represents employers. If you have questions related to bringing your workforce back to the office, we can help. Call 803-799-9311 or contact us online to learn more.