This is an issue popping up all over. School is open and most of the teachers are in their classrooms but some are citing the Americans with Disabilities Act and seeking to teach remotely as a “reasonable accommodation.” Is the school required to grant such a request? The EEOC addresses this directly in a Q and A and the answer begins with a one-sentence answer: No. But to put that in context, you have to understand that the question presented is if an employer has to grant such a request “automatically” to “every employee with a disability who requests” it.
Here are some other salient points in the response from the EEOC:
- The employer “is entitled to understand the disability-related limitation that necessitates an accommodation.” Remember: it is disabilities that need to be accommodated, not general anxieties, fears or preferences. The ADA requires an interactive dialogue between employer and employee that should help the employer understand the need for the accommodation.
- Telework need not be granted as an accommodation unless the need for it is related to the employee’s disability.
- Even if the request to telework is disability-related, if there is some other form of reasonable accommodation at the workplace, “then the employer can choose that alternative to telework.” Note: the employer, not the employee, can choose.
- The employer’s response to the request must take into account whether presence in the classroom for teaching is an “essential function” of the job. That’s because “The ADA never requires an employer to eliminate an essential function as an accommodation.”
- The fact that all employees were temporarily excused from performing an essential function (such as presence in the classroom), due to the pandemic “does not mean that the employer permanently changed a job’s essential functions, that telework is always a feasible accommodation, or that it does not pose an undue hardship.”
- “These are fact-specific determinations.”
All of that boils down to: 1) consider the request and all of the usual factors that go into an ADA-based reasonable accommodation request; 2) get some legal advice to help you make this fact-specific inquiry. Obviously an employee who is denied the accommodation requested can file a grievance over it. I expect we will see more than a few of those.
The entire Q and A is lengthy. Here’s the link: https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws
DAWG BONE: EXPECT SOME REQUESTS FOR “REASONABLE ACCOMMODATION” FOR TELEWORK.
Tomorrow: the first step in dispute resolution…