In March 2020, when the United States essentially shut down due to COVID-19, many employers pivoted from a predominantly on-site workforce to a predominantly remote workforce. For more than a year, many employees have worked successfully from home due to the ongoing pandemic. Now, as vaccines are reducing many of the COVID-19 risks associated with on-site work, some employers are requiring their employees to return to the office. Not surprisingly, a number of employees are resisting calls for resuming on-site work, having grown accustomed to no commute and greater access to the comforts of home that telework provides.
In my role as employment lawyer and legal advisor on Sun Life’s outsourced leave and accommodation services, I am always interested in evolving compliance challenges and trends. As some employers endeavor to require employees to return to on-site work, they should expect to continue to see more requests to telework as a reasonable accommodation for mental and/or physical impairments under the Americans with Disabilities Act (ADA), state and local disability discrimination laws, and pregnancy accommodation laws. Unless the need for an accommodation is obvious, employers can require medical documentation to support the request and should follow established interactive processes as required under the ADA and other comparable laws.
Lawyers anticipate that it is going to be more challenging in the wake of COVID-19 for employers to successfully argue that on-site attendance is an essential function of certain roles, or to argue that allowing an employee to work remotely creates an undue burden for the employer.
The EEOC has advised that, post-COVID, employers may require employees to resume working in the office if, during the pandemic, the employee was relieved of certain onsite essential functions to facilitate working remotely. However, the EEOC has also said that if an employee has successfully performed all of the essential job functions while teleworking during the pandemic, that fact is relevant in evaluating whether a request to continue teleworking is reasonable after the pandemic.
For employers who want to require on-site work, there are certain arguments and strategies that may help, or hinder, their likelihood of success if they deny a request to telework as a reasonable accommodation. Here are some key points:
- Do others in the same role telework?
- Manager preference may not make a denial legally justifiable.
- Facts and details about essential job functions are key and should be noted in job descriptions.
- The need for frequent in-person meetings may help justify on-site attendance though this argument may be more challenging in view of the relative success of virtual meetings over the past year.
Employers have a duty to engage in a good-faith interactive process, and employers who are more willing to propose alternative accommodations to assist the employee rather than simply deny the employee’s request are more likely to avoid lawsuits at all and, if brought, to win them. Moreover, these employers are more likely to have better employee relations with the impacted employee, though employers need to be prepared that for some disabled employees and their health care providers, the only acceptable outcome is to continue to telework. Therefore, if you are inclined to deny a request to telework as a reasonable accommodation, make an effort to propose an alternative accommodation that effectively addresses the employee’s restrictions.
I encourage you to read my whitepaper, Resolving requests to telework as an accommodation post-COVID-19.
Sun Life Assurance Company of Canada, Wellesley Hills, MA. For New York group policies: Sun Life and Health Insurance Company (U.S.), Lansing, MI