Can I Continue Telecommuting as Covid Teleworking Ends?

Many federal employees are returning to the office, some unwillingly. The Covid pandemic is not yet over, and may never truly be “over” in any case. Federal employees with disabilities are looking for guidance about whether they can continue to telework as a reasonable accommodation.

For many federal employees, the answer is “maybe” and “it depends.” The disability laws, the Americans with Disabilities Act and the Rehabilitation Act, require that federal agency employers provide reasonable accommodations to its employees. If a particular accommodation would constitute an undue hardship, then the agency is not required to provide it, but may be required to consider viable alternatives.

Many federal managers mistakenly believe that an employee’s commute does not have to be accommodated. Further, few managers consider the risks that an employee with a disability faces when coming to the office. The CDC maintains a list of medical conditions that likely put a person at a higher risk of hospitalization or even death.

Telecommuting can be an Accommodation

Many federal agency employers mistakenly believe that it has no obligation to accommodate an employee’s commute. That is not correct. “To the extent that the Agency believed that it did not need to provide an accommodation related to commuting, the Agency was mistaken.” Alonso T. v. EEOC, EEOC Case No. 0120162340 (Jan. 15, 2020). In that case, the EEOC held that the EEOC itself had failed to accommodate an employee where the employee’s doctor recommended telecommuting. The EEOC could not state any clearer: “Allowing an employee to telework is a form of a reasonable accommodation.”

There is no blanket excuse that an agency’s accomodation obligation begins at the front door. Many federal managers mistakenly believe that accommodations are only required within the workplace. Federal agency employers are not required to arrange for transportation for employees or to provide accessible transportation to and from work. But that does not mean employers do not need to provide telecommuting options in the context of reasonable accommodations.

Accommodating Risks due to Disabilities

Agencies may be required to accommodate health risks that arise as a consequence of a disability. In Jody L. v. Dept. of the Air Force, EEOC Case No. 0120151351 (Jan. 17, 2018), the Agency did not accommodate an employee who was partially paralyzed from the chest down. The employee worked in a facility in North Dakota, which gets pretty cold in the winter. He requested an accommodation to telework when the temperatures were below -20 degrees fahrenheit. As the employee explained it, if he were to drive in when it was this cold and his car were to break down, he could easily die before help reached him on these extremely cold days. The temperatures, combined with his disability, presented a risk of death or harm that justified a reasonable accommodation.

There are few cases concerning the increased risks that individuals with disabilities face. But Jody L. demonstrates that risks alone can justify a reasonable accommodation request. Admittedly, the risks in Jody L. are unlike the risks that probably most employees with a disability face. But such risks are not totally uncommon.

Accommodating Covid Risks

Do federal agencies have an obligation to employees to accommodate risks created by disabilities when it comes to Covid? It bears mentioning that the analysis laid out above provides no help to those who do not have an existing disability. It also does not really apply to those seeking an exemption from federal vaccination policies.

Until the EEOC starts deciding pandemic-era cases, the truth is that no one can be sure whether a particular disability will require telework as a reasonable accommodation. But, the cases cited above, when read together, certainly support that such telework accommodations could be required under the disability laws.

The right place to start thinking about this is talking with your medical professional. The CDC has identified a number of medical conditions that make a person “more likely to get very sick with COVID-19,” including a higher risk of hospitalization and death.

The CDC’s list of conditions include cancer, chronic lung disease (such as asthma, COPD), diabetes, and persons with spinal cord injuries. Particularly at risk may be those with compromised immune systems. These kinds of medical conditions could justify a reasonable accommodation that would eliminate the need to be physically present in the office. Most of these conditions, if not all, would qualify as disabilities under the disability laws.

The reality is that we probably do not have enough data about Covid’s effects on individuals with disabilities to know precisely how effective telecommuting accommodations are. And most likely any analysis would only apply to the average person with a certain condition. Every disability is different.

Find Help with Reasonable Accommodations for Covid Risks

Some jobs, however, cannot be accommodated with 100% telework. Federal jobs that require a person to review classified materials in a secure environment typically cannot be accommodated by full-time telework. But even individuals who, from time to time must be in the office may still qualify for situational or part-time telework. See Hae T. v. Bernhardt (Interior), EEOC Case No. 2019003385 (Sept. 23, 2020). See also my recent post on Fake Essential Functions and How Management (illegally) Fudges Essential Functions to Avoid Accommodations.

If you have questions about getting accommodations from federal government agencies, talking to a lawyer can be helpful in identifying specific information that agency employers need to know, such as diagnoses and the connection between the medical condition and the Covid risk.

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