“Ask Sarah” Column
We employ a community relations manager whose main duty is to go out into the community, attend functions, meet with various groups, and other outside activities. This employee has just informed us that his chronic illness requires him to take medication that makes him unable to drive and sensitive to sunlight. He has asked that we accommodate him by removing all of his duties that require him to attend outdoor events or to drive. He stated he would do his work from the office via telephone, emails, and videoconferencing, and has pointed to his continued success in his role during the height of the COVID-19 pandemic as evidence that he can do his job virtually. However, during COVID-19 most of his in-person obligations were cancelled. Do we have to grant this request?
No, you do not have to remove the essential functions of the employee’s job as an accommodation, even if those essential functions were temporarily removed or changed during the COVID-19 pandemic. The Equal Employment Opportunity Commission (“EEOC”) and recent court decisions have indicated that success in a temporary telework position during COVID-19 could be relevant in considering a request for remote work; however, the ADA requires that employers provide reasonable accommodations so that disabled employees can perform the main functions of their job. Taking away those very functions is not a reasonable accommodation, if the position reverted back to a similar in-person need after the pandemic.
But before you terminate this employee, have a detailed (and documented) discussion with him to confirm that alternate accommodations won’t work. Further, if you have any open position in your company that the employee is qualified to perform, such as an inside sales job, you should offer it as an alternative to termination, even if the employee has to take a pay cut.
By the way, if driving was only a small part of an employee’s job, such as getting the mail, or doing a bank run, then it will likely be required to remove that function if the employee’s disability makes him unable to drive. If the function is not essential to the job, it is reasonable to shift that duty to another employee.
“Ask Sarah” is prepared by Sarah Glaser, Chair of the Firm’s Employment Law Practice Group. If you would like additional information or have questions related to this article or other employment matters, please contact Sarah at 512.322.5881 or firstname.lastname@example.org.