Telework as Accommodation: Was It Required Here?

A new EEOC lawsuit is taking aim at an employer that allegedly violated the Americans with Disabilities Act (ADA) by refusing to allow telework as a disability-related accommodation.

The new suit highlights a question that is relevant for all ADA-covered employers: When is telework required as a disability-related reasonable accommodation?

The lawsuit, which was filed in a federal district court in Georgia, targets a cosmetic surgery provider that has offices in 11 cities in the U.S.

The employer, collectively named as Mia Aesthetics Services ATL, LLC and Mia Aesthetic Services, LLC, illegally denied the accommodation of telework to an employee with breast cancer and then terminated her employment, the suit alleges.

The employee was a surgical sales coordinator who asked to telework for about three months as she underwent chemotherapy treatments.

According to the agency, the employee provided medical documentation that supported her request for the telework accommodation.

Suit: Employer Denied Accommodation Request

The employer denied the requested accommodation even though in-person attendance was not an essential function of the job, it adds.

The employer did offer to move the employee to a part-time front desk position, the EEOC notes. But that move would have lowered her earnings, it said. When the employee turned down that offer, her employment was terminated, it alleges.

The suit alleges that the employer added insult to injury by quickly replacing the employee with a surgical coordinator who was permitted to work on a fully remote basis.

The agency said it tried to reach a pre-litigation settlement before proceeding to litigation.

“The ADA prohibits firing an employee because of a disability,” said Marcus G. Keegan, regional attorney for the EEOC’s Atlanta District Office in a press release. “Mia Aesthetics violated the ADA when it callously discharged an employee undergoing chemotherapy treatments instead of granting her request for a defined period of telework as a reasonable accommodation, which would have allowed her to perform the essential functions of her position.”

Telework as Accommodation: What Are the Rules?

When presented with a request for any disability-related job accommodation, employers should actively engage in an interactive process to cooperatively attempt to find an effective accommodation that does not unduly burden the employer.

That’s step one: Do not dismiss a request for accommodation out of hand, based either on an unfounded conclusion that the employee does not have a disability or is essentially asking for too much. Evaluate each accommodation request with care before concluding that it is not feasible.

When it comes to a specific request for a telework accommodation – and assuming there is no question that the employee has a disability that entitles them to job accommodation – a keystone inquiry is whether in-person job attendance is an essential function of the position.

In some cases, it is easy to answer this question. Some positions necessarily and unquestionably require job attendance because they cannot be performed remotely. As extreme examples, think about a delivery driver or plumber.

Key Accommodation Issue: Essential Functions

But there are also plenty of jobs where the job’s essential functions can be accomplished while teleworking. A phone-based customer service representative – and many other jobs where the job duties primarily involve telephone communication – are examples of jobs that are good candidates for remote work as a job accommodation.

If in-person attendance is not an essential job function and those functions can be performed remotely, it will probably be very difficult for an employer to show that denial of telework as an ADA accommodation is permissible.

5 Specific Accommodation Tips

Here are some additional tips relating to telework as accommodation, courtesy of an EEOC technical assistance document on the subject:

• The ADA does not require employers to offer a telework program to all employees. But if they do, the ADA might require them to modify eligibility requirements as a job accommodation.
• Permitting telework from home may be required as a disability-related accommodation even if an employer does not have a telework program.
• If telework is sought as an accommodation, talk with the employee to determine whether there are specific limitations that make telework the only effective accommodation.
• Identify and review the job’s essential functions and assess whether they can be performed remotely.
• If there is an alternative accommodation that is effective, the employer may elect to provide that alternative accommodation in lieu of teleworking. When there is more than one effective accommodation, the employer may choose which one to provide.