Mackall, Crounse & Moore, PLC has joined Dewitt Ross & Stevens S.C.

The newly formed DeWitt Mackall Crounse & Moore S.C. will provide clients with enhanced legal services
and efficiencies as well as access to more than 100 attorneys practicing in nearly 30 areas of
law in Wisconsin and Minnesota.

Dismiss this message

×

News & Education

Back to COVID-19 Resource Center

Filter by:

Telework As a Reasonable Accommodation in the Age of COVID-19 | The EEOC Provides Helpful Guidance, But Employers, Especially Those with Wisconsin Employees, Should Remain Cautious

For multiple months now, I have been having regular conversations with employers regarding the potential impact coronavirus-related telework/work-from-home arrangements may have on their obligations to provide reasonable accommodations under disability law.  The central concern goes something like this:

  • The employer would strongly prefer to have its employees work at the office and, until this year, considered office attendance to be essential.  Now, however, as a result of coronavirus-related precautions and/or government-mandated closures, much of the employer’s work force has been working from home and doing so (in at least some instances) as productively as before the pandemic.  Is the employer now required to permit employees with qualifying disabilities to telework as a reasonable accommodation?

On September 8, 2020, the Equal Employment Opportunity Commission (“EEOC”) issued new guidance that helps to address this concern, at least to a degree.    

The EEOC’s Updated Guidance

In its updated guidance, the EEOC made each of the following points:

  • Employers that have granted (or have been required to grant) employees the ability to telework as a result of concerns relating to COVID-19 are not “automatically” required to grant telework as a reasonable accommodation under the Americans with Disabilities Act.  Instead, an employer is entitled to engage in the interactive process with any employee seeking an accommodation and determine whether: 1) the employee’s disability-related limitations require telework; and/or 2) whether there may be another available accommodation that adequately addresses the employee’s limitations.
  • Significantly, “[t]o the extent that an employer is permitting telework to employees because of COVID-19 and is choosing to excuse an employee from performing one or more essential functions, then a request—after the workplace reopens—to continue telework as a reasonable accommodation does not have to be granted if it requires continuing to excuse the employee from performing an essential function. The ADA never requires an employer to eliminate an essential function as an accommodation for an individual with a disability.”
  • An employee’s effectiveness in performing the job while on coronavirus-related telework can be relevant to whether telework is a reasonable accommodation under the ADA after the employer otherwise requires employees to return to work. In fact, the EEOC specifically says that the coronavirus-related telework period can be a “trial period” for working-from-home under other circumstances.

Taken as a whole, I think the guidance is largely reassuring to employers – an employer that may have altered a position’s essential functions and/or excused certain productivity issues to enable employees to work from home as a result of coronavirus concerns is not required to permanently accept the changes/diminished productivity as a reasonable accommodation under the ADA.  However, the guidance still points to some risks.  Namely, even if an employer would strongly prefer to have its employees work from the office, it will become more difficult for the employer to argue that office work is essential if employees are able to perform their jobs effectively from home, especially if they have been able to do so over a relatively lengthy period of time. 

Wisconsin Employers Face Additional Risks

Unfortunately, Wisconsin employers face additional risks as a result of the accommodation requirements imposed by the Wisconsin Fair Employment Act (“WFEA”).  Wisconsin courts (as well as the Wisconsin Labor and Industry Review Commission) have repeatedly held that, depending on a given set of circumstances, a Wisconsin employer may be required to alter the duties of a position as a reasonable accommodation to comply with the WFEA.  In other words, although employers are not required to change/eliminate essential functions of a position under the ADA, Wisconsin employers may be required to do just that under Wisconsin law. 

Given this background, I can easily envision a scenario under Wisconsin law in which an employer that has offered/mandated telework for a period of time as a result of COVID-19 is required to permit an employee to continue to telework as a reasonable accommodation, even when the employer would strongly prefer the employee to work in-person, the person’s productivity would arguably be greater in person, and/or the employer ordinarily considers in-person work to be essential.  The danger of this risk materializing will almost certainly become more acute the longer the employer’s employees are able to work from home during the pandemic and do so relatively effectively. 

Wisconsin employers should remain cognizant of this risk when evaluating their coronavirus-related telework policies, and, if they have not already done so, consider taking some precautions in an effort to mitigate the risk, including periodically emphasizing in writing to employees the temporary nature of any working-from-home privileges and/or the need for in-person work when conditions are appropriate to do so safely.                

About the Author

John Gardner is an attorney practicing out of our Madison office. He is the Chair of the Labor & Employment Relations practice group. He is also a member of the Litigation practice group. Contact John by email or by phone at (608) 252-9322.

Our Locations

We are currently limiting the amount of outside visitors to the firm.  

Please work directly with your attorney who will coordinate any onsite visits to ensure the safety of our clients and colleagues.

Madison

2 East Mifflin Street, Suite 600
Madison, WI 53703
(608) 255-8891
Get Directions

Greater Milwaukee

13845 Bishop’s Drive, Suite 300
Brookfield, WI 53005
(262) 754-2840
Get Directions

Minneapolis

2100 AT&T Tower,
901 Marquette Avenue
Minneapolis, MN 55402
(612) 305-1400
Get Directions


Get to know us

DeWitt LLP is one of the ten largest law firms based in Wisconsin, with an additional presence in Minnesota. It has nearly 140 attorneys practicing in Madison, Metropolitan Milwaukee and Minneapolis in over 30 legal practice areas, and has the experience to service clients of all scopes and sizes.

Our People
Our Law Firm
Leadership
Areas of Expertise
News & Education
Contact Us

Partners

We are an active and proud member of Lexwork International, an association of mid-sized independent law firms in major cities located throughout the Americas, Europe and Asia and an active member of SCG Legal, an association of more than 140 independent law firms serving businesses in all 50 state capitals and major commercial centers around the world.

Awards

Super Lawyers 2020
Best Lawyers 2013 – 2020
Compass Award 2012
Top 100 Lawyers: National Trial Lawyers Association
Expertise.com Best in 2020

NOTICE

While we would like to hear from you, we cannot represent you until we know that doing so will not create a conflict of interest. Accordingly, please do not send us any information about any matter that may involve you until you receive a written statement from us that we represent you (an “engagement letter”). You will not be a client of the firm until you receive such an engagement letter.

The best way for you to initiate a possible representation is to call DeWitt LLP at 608-255-8891. We will make every effort to put you in touch with a lawyer suited to handle your matter. When you receive an engagement letter from one of our lawyers, you will be our client and we may exchange information freely.

Please click the “OK” button if you understand and accept the foregoing statement and wish to proceed.