EEOC and OPM Provide Guidance on Navigating Post-Pandemic Telework Accommodations

At the end of January, the Trump administration issued a presidential memorandum requiring all departments and agencies in the executive branch to terminate remote work arrangements and require employees to return to work in person consistent with applicable law. 

In response, the Equal Employment Opportunity Commission (EEOC) and Office of Personnel Management (OPM) issued a series of FAQs to guide federal agencies on navigating telework accommodations in light of the return-to-office mandate.

The EEOC identifies three types of reasonable accommodations under the Rehabilitation Act and the Americans with Disabilities Act: “(1) accommodations that enable applicants with disabilities to participate in the application process; (2) accommodations that enable employees with disabilities to perform the essential functions of their positions; and (3) accommodations that enable employees with disabilities to enjoy equal benefits and privileges of employment as are enjoyed by employees without disabilities.” Telework may qualify as a reasonable accommodation when it serves one of these three purposes.

The guidance is intended to help agencies determine when to grant, modify, or deny reasonable accommodation requests and to provide information on how to structure the interactive process. The FAQs also differentiate among full-time telework, recurring or routine telework occurring on a regularly scheduled but less than full-time basis, and situational telework occurring during extenuating circumstances.

While the EEOC created this guidance for federal agencies, it is also instructive for private employers navigating the post-pandemic return-to-office landscape and evaluating telework accommodation requests. Indeed, the EEOC has recently touted its federal sector opinions curbing many LGBTQ+ protections provided during previous administrations as a sign of how employers at large should interpret civil rights laws. The FAQs touch on several key themes.

Structuring the Interactive Process

The guidance recommends utilizing a centralized review process for high-impact accommodation requests, such as requests for telework, to ensure consistency and uniformity in decision-making. Agencies may also choose to establish a regular cadence for reevaluating previously granted telework accommodations.

Reevaluating Telework Accommodations

In light of agencies’ efforts to bring employees back into the office, the guidance notes that agencies are not obligated to permanently remove essential job functions to accommodate telework, even if those functions were temporarily removed during the pandemic. Agencies should reevaluate and modify accommodations when material changes occur, such as a change in the employee’s condition, job requirements, operational needs, or applicable law.

The guidance also affirms that agencies may ask an employee’s healthcare provider about mitigating measures or self-accommodations the employee could take to permit in-office work. When evaluating a request for telework accommodations, agencies may consider reliable conflicting evidence and evidence from sources other than the employee or the employee’s healthcare provider, such as the employee’s public social media accounts.

Telework Requests Unrelated to Performance of Essential Job Functions

The FAQs address several issues that frequently arise in connection with telework requests.

First, agencies are not required to grant a telework accommodation for reasons unrelated to the employee’s ability to perform their job. For example, if telework would improve an employee’s overall quality of life but would not enable the employee to perform the essential functions of their role, the agency is not required to provide it.

Second, agencies are not required to provide telework accommodations to employees with difficult or lengthy commutes. However, agencies may be required to provide flexible scheduling to enable the employee to effectively accomplish their commute and access the worksite or to offer situational telework while the employee relocates closer to the office or secures alternative means of commuting.

Third, an agency is not required to resort to telework as an accommodation simply because an employee asserts that they experience anxiety or disability-related symptoms while working in the office. Rather, the guidance suggests that “[s]imple observation” may provide insight into whether conditions such as anxiety require accommodation. Specifically, the guidance states, “If [the] employee requests telework due to anxiety or similar distress in the workplace, the employer should first observe the employee perform their duties in the workplace. If the employee is able to perform to the employer’s satisfaction, then anxiety is likely not a material barrier to equal employment opportunity. In the run of cases, common anxiety, without more, is unlikely to impose a material barrier.” The guidance does not address how agencies can convince employees to come to the office to undergo such observation or how to respond when a medical professional has determined that telework is the appropriate accommodation for anxiety or other mental conditions.

Conclusion

This guidance is directed at federal agencies and does not substitute for judicial decisions that may provide greater levels of protection for employees in the private sector. Nonetheless, it offers useful information for all employers transitioning their workforces back to the office. Employers should ensure their policies and practices are consistent with the law, as well as review their interactive processes to ensure consistency in how telework accommodation requests are evaluated. In addition, employers should consider reevaluating previously granted telework accommodations with particular focus on those provided during the pandemic.