Remote Work Accommodation Requests in a Post-COVID World: How “Essential” is the Office Anyway?
After nearly two years of having the flexibility to work from home, it’s not hard to understand why many employees are reluctant to return to the “old ways” of business casual attire, hour-long commutes, and five days per week in-office from 9-to-5. Many employers, however, are more eager than ever to get their employees back into the office — and generally, that’s the employer’s call to make.
While this inevitably means many employees may have to begrudgingly face the reality of squeezing themselves back into their pre-pandemic work pants and schlepping back to the office at some point soon, for some employees it isn’t that simple. While employers generally have the right to implement whatever sort of in-person attendance or return to office policies they feel are appropriate for their workforce, exceptions to such policies may sometimes need to be made for employees who request remote work accommodations for legitimate medical or disability-related reasons.
To be sure, employers must give thoughtful consideration to such requests and, in order to avoid exposure to potential discrimination or failure-to-accommodate claims under the Americans with Disabilities Act (ADA), must also engage in good faith in an interactive process with any such employees to determine whether a “reasonable accommodation” can be made (whether that accommodation be to permit the employee to work remotely, or to provide some other suitable alternative accommodation) without posing an undue hardship on the business.
Traditionally, pre-COVID employers faced with remote work accommodation requests from employees who had not previously performed their jobs remotely and/or were hired for in-person positions had a fairly straightforward road map they could follow to deny such requests without much risk of implicating ADA concerns — in-person, in-office attendance, they would claim, is an “essential function” of the employee’s job and the ADA is well-settled that an employer need not grant an employee’s workplace accommodation request if doing so would render said employee unable to perform the essential functions of their job.
For employers today, however, it isn’t that simple.
The pandemic, in many ways, has rapidly and fundamentally changed the way many people view the concept of the workplace. While the law struggles to keep up with these changes, , employers are left to navigate considerable uncertainty and gray area in the interim.
Is it still reasonable in today’s world for an employer to claim that an employee’s ability to come into the office five days per week is an “essential” function of their job? For some positions, sure. But what if the employee at issue has been working from home throughout the entirety of the pandemic and has been satisfactorily performing their job duties and responsibilities without any performance issues? What if the employee at issue has a job that doesn’t require any in-person interaction at all? Can employers still in good faith take the position it is “essential” for such an employee to report to the office in order to perform their job if the employee’s only in-person interactions at the office consist of awkward social encounters and forced small talk with their co-workers at the coffee machine?
The reality is, in the post-COVID world, the answers to these questions aren’t as clear as they once were. Accordingly, employers must take care to evaluate remote work accommodation requests made by employees with medical conditions or disabilities on a case-by-case basis and should ensure any decisions made with respect to such requests adequately take into account the various individual factual circumstances unique to the employee at issue and the nature of the employee’s job duties.
In recent updates to its guidance titled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” the U.S. Equal Employment Opportunity Commission (EEOC) weighed in on this issue, providing that an employee’s “temporary telework experience” during the pandemic “could be relevant to considering [a] renewed request” by the employee for an accommodation to continue working remotely after their temporary telework arrangement ends. By way of example, the EEOC opined that “the period of providing telework because of the COVID-19 pandemic could serve as a trial period that showed whether or not this employee with a disability could satisfactorily perform all essential functions while working remotely, and the employer should consider any new requests in light of this information.”
Notwithstanding this, the guidance also reiterates that “[t]o the extent that an employer is permitting telework to employees because of COVID-19 and is choosing to excuse an employee from performing one or more essential functions, then a request—after the workplace reopens—to continue telework as a reasonable accommodation does not have to be granted if it requires continuing to excuse the employee from performing an essential function,” because “[t]he ADA never requires an employer to eliminate an essential function as an accommodation for an individual with a disability.”
What’s more, as the guidance makes clear, “[t]he fact that an employer temporarily excused performance of one or more essential functions when it closed the workplace and enabled employees to telework for the purpose of protecting their safety from COVID-19, or otherwise chose to permit telework, does not mean that the employer permanently changed a job’s essential functions, that telework is always a feasible accommodation, or that it does not pose an undue hardship. These are fact-specific determinations.”
Despite the EEOC’s confirmation in its guidance that employers may generally continue to take the position that coming into the office is an essential function of an employee’s job, even where the employee at issue has been temporarily working remotely throughout the pandemic, the EEOC’s filing of a recent lawsuit on behalf of an employee whose employer denied a post-COVID remote work accommodation request made for disability-related reasons, EEOC v. ISS Facility Services, Inc., makes clear that an employer’s ability to do so is not without limitations.
According to the complaint filed by the EEOC, Ronisha Moncrief, the employee at issue, worked for ISS as a health and safety manager. From March 2020 through June 2020, ISS required all of its employees, including Moncrief, to work remotely four days per week due to COVID-19. In June 2020, when the facility re-opened, Moncrief requested an accommodation to, among other things, be permitted continue work remotely due to her pulmonary condition that causes her to have difficulty breathing and placed her at a greater risk of contracting COVID-19. According to the complaint, although the company allowed other employees in Moncrief’s position to work from home, it denied Moncrief’s request and, shortly thereafter, fired her. In an EEOC press release about the case, Marcus G. Keegan, regional attorney for the EEOC’s Atlanta District Office, commented that “[d]enying a reasonable accommodation and terminating an employee because of her disability clearly violates the ADA at any time,” and noted that such actions are “particularly concerning” in today’s climate when viewed “[i]n light of the additional risks to health and safety created by COVID-19.”
At the end of the day, whether or not to require employees who have been working remotely on a temporary basis during the pandemic to return to the office in-person is a business decision that each individual employer will have to make for themselves and their workplace. Neither choice is without its risks. While employers who chose to require in-office attendance must remember to proceed with caution when responding to and evaluating the feasibility of remote work accommodation requests made by employees with medical conditions or disabilities in order to avoid ADA concerns, employers who decide instead to allow their workforce to remain fully or partially remote may face their own legal challenges as well.
For example, employers who choose to continue to permit employees the flexibility to work from home may potentially increase their exposure to wage and hour issues, such as claims of unpaid overtime for “off-the-clock” work made by non-exempt remote employees and, if such employers decide to allow only some of their employees to work remotely but not others, potential exposure to discrimination and disparate treatment claims as well.
These sorts of business decisions are complicated, especially given the current labor market where employers in nearly every industry are struggling to retain and compete for quality talent. In making such decisions, employers should consult with experienced employment counsel to ensure they have adequately considered the various potential legal implications and risks associated with their chosen course of action and have taken reasonable steps to mitigate any such risks.
Employers and individuals who have questions about remote work accommodation requests under the ADA or who need advice as to how best to navigate the various legal issues that may arise in the workplace relating to COVID-19 should contact one of the experienced attorneys in Bailey Glasser’s Labor & Employment Practice Group.