EEOC Releases Guidance on Telework as a Reasonable Accommodation

Here’s a problem: An employee says he experiences anxiety when working in the office and requests working from home as a reasonable accommodation. How should the employer approach the work from home request as an accommodation?

The federal Equal Employment Opportunity Commission (EEOC) recently published guidance addressing this issue. While the guidance is directed to federal agencies under the Rehabilitation Act of 1973, its counterpart in the private sector is the Americans With Disabilities Act (ADA). The guidance uses ADA case law and analysis and is instructive on the position the EEOC would take were a private-sector employee to file a disability discrimination complaint with the Commission.

Telework and the Essential Functions of the Job

In the problem above, under the ADA, the employer must engage in an informal interactive discussion of reasonable accommodation that enables the employee or applicant to:

1.     Participate in the application process;

2.     Perform the essential functions of the job; or

3.     Access equal benefits and privileges of employment.

Surprisingly, the EEOC guidance explains that accommodations, including working from home, requested primarily for the benefit of managing the employee’s condition, mitigating their symptoms, or improving their quality of life, without also serving one of these purposes is not a reasonable accommodation. 

The guidance reinforces that while many employees may experience anxiety in the workplace, the ADA does not create a general right to be free from all discomfort and distress, including anxiety. For employers, when disability-related symptoms arise in the workplace, the first question "whether the symptoms impose a material barrier to the employee’s ability to work in the office or enjoy a privilege or benefit of employment.” If not, then reasonable accommodation is not the issue. Therefore, the question becomes how does the employer determine if the anxiety affects the employee's work?

According to the EEOC, simple observation can be the best approach. If an employee requests telework due to anxiety or similar distress in the workplace, the employer should first observe the employee's work performance 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.

The guidance underscores, however, that if there is a demonstrated material barrier to work, the employer must consider reasonable accommodation, but not necessarily telework. Telework is only mandatory where all other options are demonstrably ineffective and telework as an accommodation does not impose a significant difficulty or a significant expense for the employer.

Employers May Reevaluate Telework Accommodations

In addition, an employer does not need to provide a particular accommodation indefinitely. Rather, the EEOC emphasizes that an employer may reassess the accommodation on a periodic basis or when circumstances, like the employee’s condition, his job duties, or the employer’s operational needs change. If the reevaluation shows that the employee no longer requires telework or that telework is no longer a reasonable accommodation, the employer may rescind the accommodation.

Employers May Consider Conflicting or Contradictory Evidence 

Employers may consider reliable evidence that conflicts with an employee’s asserted need for telework, including social media activity or other observations of employee conduct inconsistent with the reported limitations. In addition, if the employee and/or the healthcare provider provide insufficient information, an employer may require that a healthcare provider of its choice examine the employee in order to assess a telework accommodation’s necessity.

Editor's Note: We will be discussing additional points from the EEOC’s guidance in our upcoming webinar, How to Conduct the ADA Reasonable Accommodation Interview; Understanding the ADA Interactive Process on Thursday, March 19, 2026. To enroll online, click here or contact Jessenia Narvaez, Office Manager at jessenianarvaez@robertnoonan.com or (860) 349-7010.

Employer Work Rules and Handbook Policies Get Friendlier Read by NLRB

In welcome news to both non-union and union employers, the National Labor Relations Board (NLRB) appears to be adopting a more employer-friendly approach to workplace rules and handbook policies, as suggested by February 27th guidance from the Board’s General Counsel. The guidance, issued to NLRB Regional Offices, directs local offices to take a more selective approach in pursuing employee claims that workplace rules or handbook policies are unlawful.

Background

Traditionally, the National Labor Relations Act (NLRA), which is enforced by the NLRB, has been applied to unionized workplaces or those in the midst of union organizing. 

Section 7 of the NLRA guarantees most private-sector employees, including non-union employees, the right to self-organize, form, join, or assist labor unions, bargain collectively through representatives of their choice, and engage in other "concerted activities" for mutual aid or protection.

In the recent past, the NLRB has increasingly exercised jurisdiction over non-union circumstances. This has included scrutinizing non-union employer policies and rules, like workplace civility, confidentiality, and social media policies, for unlawful interference with employees' Section 7 rights.

The standard used to analyze these policies has changed multiple times depending on the Board’s composition.

The Prior Standard: Boeing

In 2017, the NLRB established a test for assessing whether a workplace rule or policy impermissibly impacted Section 7 rights in a case involving the Boeing Company. Boeing maintained a workplace policy that prohibited employees from using cell phones with cameras (or similar devices) to take pictures or videos without a valid business need and company approval. 

The Boeing employees argued the no-camera policy prevented them from gathering evidence or sharing information with coworkers or unions about workplace issues, and therefore interfered with their Section 7 rights. The company, meanwhile, argued the rule was necessary to protect national security, proprietary technology, and export-controlled defense work performed at its facilities.

In analyzing the no-camera policy, the Board in Boeing established a balancing test for analyzing workplace policies, wherein it would weigh:

• The potential impact of the rule on employees’ NLRA rights, against

• The legitimate business justifications offered by the employer.

Applying this test, the Board concluded that Boeing's no-camera rule was lawful. The Board majority reasoned that the rule potentially affected the exercise of NLRA rights, but that the impact was comparatively slight and outweighed by important justifications, including national security concerns.  

Under the Boeing standard, facially neutral workplace rules were generally upheld by the NLRB as lawful.

Stericycle: A More Aggressive Approach

In a major ruling in 2023, the NLRB instituted a new standard in analyzing workplace rules in Stericycle, Inc. In that decision, the NLRB adopted a two-step burden-shifting test strongly favoring employees.

Under that standard,

• Once the NLRB finds that a rule or policy would discourage a reasonable employee from pursuing rights under Section 7, the rule would be considered presumptively unlawful. 



• The employer would then need to prove:

• The rule advances a legitimate and substantial business interest, and

• The rule is narrowly tailored to achieve that interest.

Under this analysis, the employer would have a high burden and be required to justify the rule with specificity.

The General Counsel's Memo and Your Handbook Policies

While Stericycle still remains the law, the General Counsel’s memo instructs regional offices to focus on rules that present obvious violations, “such as outright bans on discussing wages among employees,” rather than on vague policies.

Importantly, it directs that the business necessity of the employer rule should not be considered in a vacuum, but rather within the context of the employer’s industry, with weight given to whether the employer has a business justification for the rule.

For employers, the guidance suggests that the NLRB may take a more restrained enforcement approach similar to that under Boeing. Nevertheless, policies that directly limit employees’ ability to discuss wages, workplace concerns, or other protected activity remain likely targets for scrutiny, and employers should continue reviewing handbook policies with those protections in mind.

U.S. DOL Moves to Loosen Independent Contractor Regulations

In another employer-friendly shift, the U.S. DOL recently proposed rescinding the current test for classifying workers as independent contractors instead of employees in favor of a less onerous standard. 

The proposed rule represents the latest development in a long-running regulatory debate over worker classification—an issue with substantial implications for employers. If finalized, the Proposed Rule will impact the definition of “independent contractors” under the Fair Labor Standards Act (FLSA), Family and Medical Leave Act (FMLA), and Migrant and Seasonal Agricultural Worker Protection Act (MSPA).

The Current Rule

Currently, the DOL analyzes a six-factor “totality of the circumstances” test to evaluate worker classification, with no one factor carrying more weight. Those factors include:

• The worker's opportunity for profit or loss depending on managerial skill.

• Whether the worker made meaningful business investments, such as equipment, tools, advertising or facilities.

• Whether the work relationship between the worker and the employer is ongoing and indefinite or project-based and temporary.

• How much control the employer exercises over the worker’s activities.

• Whether the worker performs work that in central to the employer’s core business.

• Whether the worker uses specialized skill and initiative.

The Proposed Rule 

Under the DOL’s Proposed Rule, published on February 26, 2026, the DOL will now focus on whether a worker is, as a matter of economic reality, in business for himself (making him an independent contractor) versus dependent on the employer for continued work (making him an employee).

In analyzing the economic reality of the relationship between the worker and the employer, the DOL will apply a five-factor test, with the first two “core factors” carrying the most weight:

• The nature and degree of control over the work. Where the worker controls aspects of work such as setting work schedules and choosing assignments, works with little or no supervision, and is able to work for others, this factor will weigh in favor of an independent contractor relationship. By contrast, the worker is more likely to be an employee if the employer substantially controls such aspects of the job.

• The individual’s opportunity for profit or loss. This factor supports an independent contractor determination “to the extent the individual has an opportunity to earn profits or incur losses based on his or her exercise of initiative (such as managerial skill or business acumen or judgment) or management of his or her investment in or capital expenditure on, for example, helpers or equipment or material to further his or her work.

Other factors the DOL considers under the Proposed Rule are:

• The amount of skill required for the work. To the extent the individual’s work requires skill or specialized training that the potential employer does not provide, this factor weighs in favor of independent contractor status. Where no specialized training is required beyond the training provided by the employer, this factor is more indicative of employee status. 

• The degree of permanence of the working relationship between the individual and the potential employer. Where the parties’ relationship is by design definite in duration or sporadic, this factor supports an independent contractor finding. In contrast, a long-term relationship is more indicative of employee status.

• Whether the work is part of an integrated unit of production. This factor would weigh in favor of the individual being an independent contractor when the work is “segregable from the potential employer’s production process.” In plain terms, when a workers is not working in the same kind of business as the employer, this would support a determination that the worker is an independent contractor.

Next Steps

The DOL is accepting public comments through April 28, 2026, before developing a final rule. Keep in mind the rule will only apply to classification under certain federal laws. Different independent contractor tests apply under Connecticut law, federal IRS regulations, and other federal laws.

U.S. Job Growth Plummets, Unemployment Ticks Up

The U.S. lost 92,000 jobs in February, while the unemployment rate ticked up to 4.4%, according to the latest U.S. Bureau of Labor Statistics. Economists had expected 50,000 job additions. The report also slightly revised down January’s figure from 130,000 jobs to 126,000 jobs created. More importantly, the revisions cut December’s figures from 50,000 jobs created to 17,000 jobs lost. Job growth has now gone negative in three of the last six months.

With those revisions, 2025 was the first year to record five months of labor market contractions since 2010 when the economy was recovering from the global financial crisis. For employers, the job market appears to remain in a state of low hire/low fire stasis, with employers prioritizing retention. This is reflected wage growth of 3.8% over the year.

The slowing labor market is due in part to cautious hiring in response to uncertainty around tariffs and immigration policy. 

Across the Employment Lawyer's Desk

Question: If our employees have to travel from job site to job site during the day, do we have to pay them for travel time?

Answer: Yes, time spent travelling during the work day as part of the employee's principal activity counts as hours worked. However, in general, the Fair Labor Standards Act does not consider ordinary commuting to and from the workplace to be time worked. Employers can set a lower hourly rate for travel during the workday, provided it is communicated in advance in writing and meets minimum wage requirements.