With COVID-19 forcing many employees to work from home, there is a question of whether remote work will become a reasonable accommodation under the Americans with Disabilities Act (ADA).

The Equal Employment Opportunity Commission (EEOC) has opined that businesses will not be required to automatically allow remote work as a reasonable accommodation. The EEOC reasoned that employers who were forced to temporarily suspend in-office work during COVID-19 are not now required to permanently change a job’s essential function to permit remote work.

However, given the many successes of working from home, employers may find it more challenging to argue that remote work is an undue burden in all lines of work.

If an employee with a preexisting mental illness or disorder that has been exacerbated by the pandemic is seeking remote work as a reasonable accommodation, employers should engage in the same process as any accommodation request: ask questions to determine whether the condition is a disability, discuss with the employee how the accommodation would assist them in their work, explore alternative accommodations, and, if needed, request medical documentation.

While we expect this issue to be litigated in the future, it will likely remain a fact-specific determination and employers should still engage in the interactive process to determine if working remotely is a viable accommodation.

Please contact Ashley Orler, Employment Practice Group Chair, or your GCT lawyer for more information.