Can Virtual Work Be A Reasonable Accommodation During COVID-19?

COVID-19 has completely affected every area of our society, including the workplace. Employers are scrambling to attempt to deal with the multiple facets of how this global pandemic adequately and effectively is affecting their employees and their financial bottom line. In this unprecedented situation, many workplaces are now receiving requests to either start, or continue, working from home. In certain cases, employees may have the legal right to work virtually from home (also known as telework or telecommuting) under the Americans with Disabilities Act (ADA) and California’s protections for a right to a safeworkplace found in California’s Labor Code. Learn more about whether or not virtual work can be considered a reasonable accommodation during COVID-19 under the law.

Americans With Disabilities Act

The ADA is a federal law that requires employers with 15 or more employees to provide “reasonable accommodations” to any employee that has a disability. A reasonable accommodation is a change or adaptation in the work environment or the way work is performed that will allow a person to effectively complete their job taking into account their particular disability. An employer does not have to legally adhere to the ADA policy regarding reasonable accommodations if it would cause an undue hardship, such as a serious difficulty or astronomical expense.

ADA and COVID-19

Many employers voluntarily allowed their employees to work from home virtually as the pandemic started to grow in the United States. No matter what side you are on regarding the COVID-19 debates, many businesses felt a strong impact financially directly due to the COVID-19 epidemic. As a result, many businesses that shuttered their doors, or allowed employees to work virtually, are now making the decision to re-open and attempt to get back to the way their offices and businesses used to operate.

Some employees, however, still fear contracting COVID-19, and may have an additional reason to be anxious given certain underlying health conditions. The Centers for Disease Control and Prevention have clearly stated that certain persons with either underlying or preexisting health conditions have a greater chance of developing serious symptoms or dying from COVID-19. As a result, these employees are now requesting to continue to work from home virtually to minimize their chances of contracting this dangerous virus.

Reasonable Accommodations and COVID-19

The short answer is that employers must provide reasonable accommodations under the ADA in response to the COVID-19 global pandemic. If an individual has a higher risk of contracting COVID-19 and developing complications, or has a family member who has a medical condition or disability making them more vulnerable, they have the legal right to request a reasonable accommodation to work from home under the ADA. Due to the increased risk of exposure in a typical workplace environment, those persons who have preexisting or underlying medical conditions should not have to risk exposure to COVID-19 in the workplace, if their job could just as easily be performed from home and causes no undue hardship, difficulty or expense on the employer.

It is important to note that the ADA does not require employers to have telework or telecommuting as a benefit to employees. However, if an employer does offer some form of virtual work, it must allow employees that have increased risks to develop serious complications from COVID-19 (considered a disability for legal purposes) to participate in the telework program. Again, an employer is not absolutely required to create or adopt a new accommodation for an employee (such as telework) if one does not exist, but may also offer other alternatives, such as a workspace away from other employees.  But where that is not possible, and an employee can still perform his or her essential functions of the job with a work at home accommodation, an employee whose right is denied should consult with an employment disability rights lawyer.

V. James DeSimone Law is highly experienced with employment law, Covid-19 death due to employer negligence, and wrongful death matters in the State of California. Call us today at 310-693-5561 to discuss your matter and how we may be able to help.

Determination Regarding Disability for ADA Purposes

An employer that receives a request for reasonable accommodations under the ADA for virtual work due to an increased risk of complications involving COVID-19, should immediately take the time to discuss the individual needs of the employee with the employee directly. The employee must explain their limitations and how their job can still be performed at home in an effective way. An employer, in this case, does have the legal right to request information and reasonable documentation regarding the employee’s health or medical condition if it remains unclear that the employee actually has a “disability” as defined by the ADA.

Additionally, under California’s Labor Code Section 6401, an employer has a mandatory obligation to “do every other thing reasonably necessary to protect the life, safety, and health of employees.” If an employer fires an employee for wanting to work at home because of reasonable safety concerns, it could be a wrongful termination.”

Accepting/Denying Reasonable Accommodation Request

If an employee shows that they have a “disability” according to the ADA and are making a reasonable request to work from home virtually, an employer will then have to make a decision based on that individual request. If the job can be performed without undue hardship or additional expense, and the employee truly does have a disability and an increased risk for developing serious complications if they contract COVID-19, the employer will likely have to allow that reasonable accommodation request.

However, if the job simply can not be performed at home (food server, truck driver, cashier, etc.) then, the employer has the legal right to either create a new job or new duties for the employee that they can do from home, or simply deny the reasonable accommodation request. There are simply some jobs that are unable to be performed at home virtually. However, if the employee typically takes sales meetings all day, those meetings can still be done from home through videoconferencing or phone calls. Ultimately, in these cases, if an employee shows how a job can be performed effectively at home, and has a disability and legal standing to request a reasonable accommodation, the employer likely has to grant the reasonable accommodation request to work from home.

Resources Regarding ADA and Reasonable Accommodation

Some of the resources available regarding this unique situation can be found here:

• Equal Employment Opportunity Commission – (202) 663-4691 (voice) and (202) 663-7026 (TTY). General information about reasonable accommodation can be found on EEOC’s website
• Job Accommodation Network (JAN) – This free service that offers employers and individuals ideas regarding reasonable accommodations. JAN can be reached at 1-800-526-7234 (voice or TDD); or at the JAN website.

Contact V. James DeSimone Law

Contact V. James DeSimone Law at 310-693-5561 and visit with one of our experienced attorneys today if you feel you are facing the issue of reasonable accommodation requests under the ADA in the workplace. We would welcome the opportunity to visit with you regarding how best to approach this new and unprecedented legal issues facing both employees and employers in the United States today.

V. James DeSimone

Attorney V. James DeSimone is a 35+ year experienced civil rights & employment lawyer in Southern California. Jim is a Super Lawyer, Rated “Superb” by Avvo, and is a US News & World Report Best Law Firm in California.