"To Telework or Not: That Is a Good Question"

In an article published in the Daily Report on Oct. 28, 2020, Crystal McElrath and Nichole Novosel provide insight on the many questions concerning if and when an employer is obligated to offer telework to employees.

In the face of the ongoing COVID-19 pandemic, many employers have had to consider both the business and legal implications of ceasing operations versus shifting to telework versus attempting to continue in-person work. Recent legislation and executive orders have addressed the protections of employees who cannot telework while at home due to COVID-19 exposure and/or lack of childcare, but questions remain concerning whether to offer telework to employees.

McElrath and Novosel explain the current federal laws, such as the Americans with Disabilities Act, as amended in 2008 (ADA) and the Rehabilitation Act, generally prohibit employment discrimination against individuals with disabilities in the workplace by restricting employers from excluding individuals with disabilities from the workplace for health or safety reasons unless they pose a “direct threat.”

"In the context of a public health pandemic, the Equal Employment Opportunity Commission (EEOC)—which enforces the ADA—acknowledges different rules may apply,” said McElrath and Novosel. "Accordingly, during the COVID-19 pandemic, an employer is permitted to encourage all employees to telework as an infection-control strategy to the extent feasible.”

Throughout the article, McElrath and Novosel outline several points, including accommodations to employees by the ADA, compliance with ADA regulations regarding disability-related inquiries, minority and/or elderly employees and the fear of “direct threat” (defined as a significant risk of substantial harm to the employee’s own health due to their disability), as well as employees’ concerns regarding family health, morale and limiting risk.

"In short, individuals who are worried about contracting COVID-19—but have no specific history of health concerns that place them at high risk—are generally subject to the business decisions of the employer with respect to the availability of telework,” conclude McElrath and Novosel. "However, the existence of a health concern or disability placing an employee (and not just a family member) at higher risk of contracting COVID-19 may implicate additional legal considerations.”

Subscribers to the Daily Report may access the full article here.