The Equal Employment Opportunity Commission (EEOC) recently released guidance regarding telework as a reasonable accommodation. Within this guidance, there is a discussion on employers using social media to help determine whether telework is a reasonable accommodation.

Why the EEOC Issued New Telework Guidance

This EEOC guidance was provided to assist federal agencies in identifying when they are required to grant or continue telework accommodations, when they are permitted to rescind, modify, or deny telework accommodations, and how they can more effectively structure their processes for telework accommodations moving forward. The guidance was issued in light of the Trump administration’s directive for federal employees to return to the office.

Telework had already been a long-standing accommodation for many employees with disabilities before COVID-19. However, the pandemic significantly expanded remote work, demonstrating that many roles could be performed effectively remotely. The return-to-office directive raised questions on how to implement its instructions while remaining compliant with the law.

The EEOC guidance aims to clarify how agencies can meet these obligations without overcorrecting.

What Does the EEOC Advise Federal Agencies on Accommodation?

The EEOC advises federal agencies that they are not required to turn a blind eye to evidence that shows an employee may not be entitled to certain accommodations, including additional breaks, assistive technology, or remote work arrangements.

If an employee routinely posts evidence on social media that is in direct conflict with their accommodations, the EEOC advises that the federal agency may follow up on these inconsistencies. If, in following up, the agency determines that the employee is not entitled to the accommodation, then they may deny or rescind the accommodation. Even so, the EEOC advises that federal agencies should use medical documentation and go through the required interactive process to determine if telework remains an appropriate accommodation.

While the guidance is directed towards the federal workforce, the principles on which the guidance is based align with the Americans with Disabilities Act (ADA). Therefore, private employers can still learn from this recently released guidance even though it doesn’t apply to them.

What Private Employers Can Take Away from the Teleworking Guidance

While private employers often follow the lead set by decisions and trends in the public sector, caution is recommended when a private employer reviews an employee’s social media to determine reasonable accommodations. There are legal and practical risks when incorporating social media into accommodation decisions:

• Privacy and bias concerns: Social media may reveal protected characteristics unrelated to the accommodation request, increasing the risk for claims of discrimination.
• Selective enforcement: Inconsistently reviewing or acting on employees’ social media could expose employers to claims of unfair treatment.
• Misinterpretation: Online content can be misleading, outdated, or taken out of context, making it an unreliable standalone source.

The ADA specifically requires private employers to consider what reasonable accommodations are available for a disabled worker and also requires that the interactive process be engaged in in good faith.

Social Media as a Red Flag, Not Proof

If an employer chooses to take social media into consideration when determining if a reasonable accommodation, such as telework, would be appropriate, the employer should never use social media as definitive proof that an employee should not receive a certain accommodation. At most, it may trigger a further inquiry, not a conclusion in itself.

Even when inconsistencies arise, employers are expected to:

• Seek clarification from the employee
• Request updated or additional medical documentation, if needed
• Evaluate whether the employee can still perform essential job duties, with or without accommodation

This ensures that decisions remain grounded in objective, job-related criteria, rather than subjective interpretations of online behavior.

Best Practices Moving Forward

While the new EEOC guidance does not prohibit an employer from taking an employee’s social media into account when determining reasonable accommodations, information learned through social media should be approached with caution and used only as a starting point for further review. Social media cannot substitute for medical documentation or individualized assessment. Employers who rely too heavily on it risk not only misinterpreting an employee’s circumstances but also legal compliance.

By: Cara Sheehan, Esq.

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