In the early days of the pandemic, many businesses were forced to shutter their doors as local and federal governments grappled with how to protect public safety. For industries with a largely virtual presence/infrastructure, “remote work” was a necessary pivot – allowing continued service while maintaining social distancing and eliminating the possibility of infection at the actual worksite. In fact, certain companies have continued the “remote option” while transitioning back to the workplace.
However, many employers have made in-person work mandatory in recent months in an effort to “return to normal” and utilize existing office space. Under the Americans with Disabilities Act (ADA), any employee with an actual or perceived disability can request a reasonable accommodation for certain job duties. Reasonable accommodation requests must be balanced with the essential functions of a job as well as the impact – or undue hardship – to the employer.
Remote work has long been a frequent reasonable accommodation request for employees with disabilities. COVID-19 has catapulted the popularity of the request, as COVID-19 is a risk for a wide-variety of immunocompromised disabilities. The Equal Employment Opportunity Commission (EEOC)’s recent lawsuit against an employer for denying a reasonable accommodation request to work remotely highlights the potential liability for employers that opt to make “return to work” a hardline rule.
In the lawsuit (the first of its kind arising out of remote work/COVID-19), the EEOC alleges that the employer discriminated against an immunocompromised employee by terminating her for alleged “performance issues” after they denied her reasonable accommodation to work from home for a portion of the week. The employer had previously required that all employees work remotely four-days a week for several months before eventually mandating that everyone “return to work.”
The case is still pending – and therefore it is early for conclusions to be drawn – however, I recommend that employers consider the following takeaways when approaching remote work reasonable accommodations moving forward:
- Consider actual impact to the business. In the above-referenced case, the employer arguably demonstrated that business could be done remotely by conducting business offsite for several months. As such, an argument for “undue hardship” to business operations may be more difficult to establish. When reviewing a request for reasonable accommodation, look at the actual essential functions of the affected job rather than the “optics” of what you would like to see for that job.
- Apply reasonable accommodations uniformly amongst job types/grades. Every reasonable accommodation request should be treated individually – examining the specific disability and related job requirements. That being said, it is important not to treat other similarly-situated disabled individuals differently than others. For example, if an office manager in one city with a pulmonary disability is granted a reasonable accommodation to work from home – there is likely an argument that an office manager with the same disability one city away should be granted the same or similar accommodation.
- Make sure your policy is clear and distributed. Oftentimes reasonable accommodations lawsuits “get legs” when employers fail to engage or treat certain individuals differently. Training both employees and management how the application and response process works minimizes liability and confusion.
Questions on the EEOC’s recent lawsuit or your COVID-19 policy? Feel free to reach out to me.
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