It is just a matter of time before most employers will have to decide whether and when it is legally permissible to require their respective workforces to return to the office after months of teleworking during the ongoing COVID-19 pandemic. Most employers, however, do not anticipate that an employee would take matters into their own hands and seek a court order permitting them to continue teleworking BEFORE the employer even requires employees to return to the office.

When faced with this novel request, however, on September 16, 2020, a federal district court in Massachusetts sided with an asthmatic employee and ordered (at least preliminarily, until the parties have the opportunity to further litigate the matter) that the employer not require the employee to return to the workplace, deferring the employee’s termination for at least sixty (60) days.  The case at issue, Peeples v. Clinical Support Options, Inc., involved an employee with asthma, who argued that their respiratory impairment constituted a disability, which the employer must reasonably accommodate during the COVID-19 pandemic, by permitting continued work from home.

This court’s decision, preliminarily siding with the employee, is significant for employers because it:  i) represents a departure from the federal courts’ traditional pre-pandemic view that telework is not generally required as a “reasonable accommodation” to an employee’s request under the Americans with Disabilities Act (the ADA); ii)  recognizes that employees can often perform the essential functions of the job from home, especially where they have already been doing it successfully for months, as in this case, when the employee had been telecommunicating for four months; and, iii)  recognizes that respiratory impairments, such as asthma, are likely to constitute an ADA disability, at least during the pandemic.

The opinion only strictly applies to employers in Massachusetts and, as we recently reported, the EEOC has released guidance stating that businesses will not be required to automaticallyallow remote work as a reasonable accommodation. 

However, employers are likely to see more and more requests of this nature as Americans continue to return to the physical workplace.   Accordingly, be mindful of the following best practices:

• It remains critical for an employer to fairly evaluate whether an employee can truly perform the essential functions of the job from home, as prior justifications that the employee’s physical presence in the office is required because of “supervisory responsibilities” or, conversely, to be “supervised” are quickly eroding because of the pandemic;

• In addition, an employer must engage in the “interactive process” to better understand the employee’s underlying health condition and the greater risk of serious illness if the employee contracts the virus because of their underlying condition;

• Finally, an employer must ensure that it is following all federal, state and local guidance and safety protocols and is communicating same to its employees to limit claims by an employee that returning to work imposes a serious health risk that is covered by the ADA.