Understanding telecommuting, "direct threats" and more

Welcome to The Benefits Briefing, where we discuss the most recent topics in leave management, compliance, regulations, HR tools and so much more. We're thrilled to have you join us for another edition.

We went back to Tommy Burton, Assistant Legal Counsel at Unum with some of your most asked and challenging ADA and compliance questions. From telecommuting requests to the concept of "direct threat," Tommy helps break down the trickiest stuff you're dealing with. So, grab a cup of coffee and get ready for a packed part two of our spotlight on ADA.

Remember to leave your questions in the comments section below! We love hearing insight from our readers, so put all your questions into the Mail Bag to be answered in future editions.

Alright, let's get into the rest of your ADA questions!

Mail Bag Question 1: What is an employer’s obligation when handling telecommuting requests to work from home because an employee’s doctor says they can’t drive but driving isn’t a necessary part of their jobs?

Requests to telecommute are more prevalent than ever, and after years of allowing it due to the pandemic, bringing back or keeping employees in the office is complicated. There are a number of circuit court opinions on this topic, and the only clear consensus is that this determination is highly dependent on the facts and circumstances of the request. The courts also seem to agree that employers aren't required to accommodate the commute or travel to work, but they may be required to provide accommodations to remove other barriers created by commute or travel restrictions.

If an employee usually works at night but can't drive in the dark, an employer might need to let them work during the day instead. This would be reasonable accommodation as long as it doesn't cause undue hardship. Under the ADA, employers can offer alternative accommodations to employees requesting telecommuting for driving restrictions or for other reasons. These accommodations must be equally effective in allowing employees to perform essential job functions.

Mail Bag Question 2: Can you place an employee on leave as an accommodation if they haven't requested that? For example, in a school setting where a kitchen staff member must wear a brace or boot that doesn't have non-skid features, would the department be able to ask them to stay home for their health and safety even if their doctor release them back to work?

The scenario outlined describes what could potentially be a concept under the ADA known as "direct threat." The regulations define a direct threat as "a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by a reasonable accommodation."*

Determining if an employee poses a direct threat must be based on reasonable medical judgment and/or the best available objective evidence. The regulations advise that the factors that should be considered are the duration of the risk, the nature and severity of the potential harm, the likelihood that potential harm will occur and the imminence of potential harm.

"When faced with a potential direct threat, employers should use the interactive process to attempt to find a reasonable accommodation to eliminate or reduce the threat rather than requiring an employee take leave. Employers can ask disability-related questions if job-related and consistent with business necessity, which may include when they believe an employee poses a direct threat."

If the analysis shows a direct threat, it's best to ask the employee if there's any way to help. If no reasonable accommodations are found through the standard process, placing the employee on leave may be appropriate until they can safely do their job.

Mail Bag Question 3: We have been asking medical providers to list the employee's restrictions and receive recommendations for accommodations instead. How do we get more clarification on what is a restriction and what is an accommodation? For example, dizziness from medication is one of the "restrictions" listed on a recent form. Is that a side-effect or a restriction?

According to the EEOC, employers have the right to access sufficient documentation that describes the nature, severity and duration of the employee’s impairment, the activity or activities the impairment limits, the extent to which the impairment limits the employee's ability to perform the activity or activities and why the requested reasonable accommodation is needed.**

Therefore, employers can only ask for clarity if a medical provider provides a possible accommodation without details about restrictions, limitations or how it will help the employee. There's a balance, and employers should use their best judgment to utilize the information provided to help their employee. Dizziness may be a side-effect, but it's easy to imagine how dizziness may impact things like walking, using a computer screen, operating certain equipment and many other job functions that may be relevant to the employee's position. The employer does have the right to receive sufficient information, but they should also attempt to contextualize that information with the expertise only they have about their business.

Mail Bag Question 4: What's an appropriate health care provider according to the ADA? Will they accept documentation from places like medical spas?

As always, the ADA requires an individual analysis, so this will depend on the specific scenario, disability and limitations the employee is experiencing. The ADA places no restrictions on the types of health care or rehabilitation providers completing the documentation.

However, "the EEOC has confirmed employers may require documentation from an appropriate health care or rehabilitation provider, and employers can require the provider to have relevant skills, experience and expertise related to the employee's known disability, restrictions and limitations."

For example, if an employer receives documentation stating an employee has neurological restrictions from an orthopedic doctor, it may be appropriate to require documentation from a neurologist or other qualified provider.

Your questions sparked a conversation that helped us uncover key insights that all HR professionals can use for a more supportive and accommodating workplace.

And in case you missed our Unum experts discussing the challenges surrounding work from home as an ADA accommodation, catch the episode here!

Have a leave, HR or benefits-related question? Drop them in the comments below and be a part of our next Mail Bag series.

Responses are edited for clarity and length. The information provided is not legal advice and should not be relied upon or construed as legal advice. This is intended for general informational purposes only and does not purport to be complete or cover every situation. Please consult your own legal advisors to determine how these laws affect you. This information is based on current laws and regulations that are subject to change.

*Code of Federal Regulations, Title 29, accessed April 1, 2024.

**U.S. Equal Employment Opportunity Commission, (EEOC), Employer-Provided Leave and the Americans with Disabilities Act, 5/9/2016. Accessed 2/29/2024.

unum.com

Insurance products are underwritten by the subsidiaries of Unum Group.

? 2024 Unum Group. All rights reserved. Unum is a registered trademark and marketing brand of Unum Group and its insuring subsidiaries.

GENERAL AUDIENCE (4-24)

NS-1986602?