Originally published in the International Risk Management Institute, Inc. (IRMI) Summer 2022 issue of Employment Practices Liability Consultant (EPLiC)
By Nick Johnson and Aleksey House
As the pandemic subsides and restrictions are lifted throughout the country, many businesses are implementing plans to welcome employees back to the office in an attempt to return to “normal” operations. Not surprisingly, “normal” has a different meaning to some after working from home for nearly 2 years, and many employees are reluctant to return to the workplace. Employees may be expecting to continue working from home for a variety of reasons, including childcare, commuting, quarantine, efficiency, and mental and/or physical health.
As a result, employers are experiencing an increase in the number of requests for continued remote work, and employers can expect numerous COVID-19–related challenges as it relates to disability accommodation practices. While employers do not have to continue to allow teleworking once offices reopen, employers must engage in the interactive process when faced with such accommodation requests to avoid exposure to potential discrimination claims under the Americans with Disabilities Act (ADA). Below is a general overview of best practices for handling the increased requests
Workplace Accommodations
The pandemic has changed how business is done and how people view the workplace. Many employers are facing the complicated question: “Is remote work considered a reasonable accommodation under the ADA?” Employers should anticipate that requests for remote work accommodations will continue to increase, and it will also become harder to deny them as well. Even though employers may experience an influx of accommodation requests, it is vital that employers evaluate each request on an individualized, case-by-case basis and engage in an interactive dialogue with the employee to determine whether a reasonable accommodation can be made.
The ADA Framework
The ADA protects qualified employees with a disability from discrimination in the workplace. To be qualified, an employee must be able to perform the essential functions of their job with or without a reasonable accommodation. Under the ADA, an employer must provide a reasonable accommodation to a qualified employee that allows the employee to perform “essential job functions” so long as the accommodation does not impose an “undue hardship” on the employer’s business, meaning “significant difficulty or expense.”[1] A “disability” is defined under the Act as “a physical or mental impairment that substantially limits one or more major life activities….”[2]
The ADA and COVID-19
Developments during the COVID-19 pandemic have expanded the potential pool of individuals covered by the ADA’s protections, and employees have brought ADA claims based on impairments and long-term side effects brought on by COVID-19. For example, COVID-19 and “long COVID” may qualify as a disability according to the Department of Justice, the Department of Health and Human Services, and the Equal Employment Opportunity Commission (EEOC).[3]
In addition, employees with preexisting disabilities, even if undisclosed, putting them at higher risk for complications from COVID-19 may be entitled to accommodation under the ADA. While the pandemic may have expanded qualifying disabilities, generalized concern or fear of exposure to and transmitting COVID-19 is not a disability.[4]
However, employers should still anticipate increased requests based on psychological, emotional, and mental health issues related to COVID-19, such as anxiety disorder, obsessive-compulsive disorder, or post-traumatic stress disorder.
“Essential” Job Function
While employers should expect an uptick in accommodation requests, the regulations and legal authority are clear: businesses do not need to materially alter jobs or essential functions to address these requests.
The language of the ADA is straightforward: a reasonable accommodation should not impose an undue hardship on the employer. Eliminating an essential job function is not considered a reasonable accommodation, and “[t]he ADA never requires an employer to eliminate an essential function as an accommodation for an individual with a disability.”[5]
As the EEOC guidance has stated, “[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.”[6]
If the request to work remotely would continue to bar an employee from performing that function, the employer is under no obligation to approve remote work as a reasonable accommodation. Further, employers do not have to continue to allow any reduced productivity levels they may have allowed during the pandemic to accommodate employees with disabilities.
If on-site work is not essential to the employee’s position, the request may be reasonable. However, “there is a general consensus among courts … that regular work-site attendance is an essential function of most jobs.” Bilinsky v. American Airlines, Inc., 928 F.3d 565 (7th Cir. 2019), as amended, reh’g en banc denied (Aug. 9, 2019) (quoting Credeur v. Louisiana, 860 F.3d 785 (5th Cir. 2017)). Further, although not in every instance, “[t]he position’s nature will often require face-to-face collaboration.” Id. (citing EEOC v. Yellow Freight Sys., Inc., 253 F.3d 943 (7th Cir. 2001) (en banc)); see also Samper v. Providence St. Vincent Medical Ctr., Case No.: 09-CV-1182-AC (D. Or. Aug. 20, 2010) (noting that in-person attendance at work is a “rather common-sense idea”); EEOC v. Ford Motor Co., 782 F.3d 753 (6th Cir. 2015) (“most jobs require the kind of teamwork, personal interaction, and supervision that simply cannot be had in a home office situation”). Moreover, courts are less protective of accommodation requests seeking indefinite remote work as opposed to remote work on a limited and defined basis.
In Bilinsky, the essential functions of the employee’s job changed after a merger from independent activities to team-centered crisis management requiring frequent face-to-face meetings on short notice. As a result, the employer determined that its remote arrangements could not meet business demands and rescinded remote arrangements for all employees. The Seventh Circuit affirmed summary judgment for the employer. 928 F.3d at 569.
Reasonableness Considerations
An accommodation can still be denied even if it is reasonable if it would amount to an undue hardship for the employer. To be reasonable, an accommodation must be feasible or plausible.
In addition, a requested accommodation is reasonable only if it “address[es] a key obstacle preventing [the employee] from performing a necessary function of [the] job.” Tchankpa v. Ascena Retail Grp., Inc., 951 F.3d 805 (6th Cir. 2020). Eliminating an essential job function is not a reasonable accommodation. If in-person work and collaboration is an essential function of the job, a request for remote work may not be considered a reasonable accommodation.
The Tenth Circuit recently reaffirmed this point that an employer does not have to eliminate essential job functions, which can include being physically present at work on a set, predictable schedule. Unrein v. PHC-Fort Morgan, Inc., 993 F.3d 873 (10th Cir. 2021). In Unrein, the court clarified that employers have no obligation under the ADA to accommodate disabled employees for problems they face outside the workplace unrelated to the essential job functions of their positions or privileges of employment merely because of the disability. See id. at 879. (“Whether a transportation barrier is caused by a broken car or legal blindness and unreliable rides, the analysis of an employer’s obligations should not change if transportation is unrelated to an essential job function and not a privilege of employment.”)
Similarly, the Sixth Circuit recently stated that “[t]he ADA is not a weapon that employees can wield to pressure employers into granting unnecessary accommodations or reconfiguring their business operations.” Tchankpa, 951 F.3d at 809 (affirming summary judgment for the employer since the employee did not demonstrate that a shoulder injury required remote work). In Tchankpa, the court also noted that “[t]he ADA shields disabled employees from discrimination—it does not permit carte blanche litigation.” Id. at 818 (holding that employer did not violate ADA by failing to accommodate employee’s request to work from home 3 days per week where employer sought to accommodate employee but employee insisted on his preferred accommodation).
Therefore, while remote work may be considered a reasonable accommodation under certain circumstances, employees who want to continue teleworking will not automatically be granted telework as a “reasonable accommodation.” Rather, the employee and employer will have to engage in the interactive process to determine whether a “reasonable accommodation” can be provided that does not cause an “undue hardship” for the employer.
How Businesses Should Handle Increased Requests for Accommodations
Determining where to draw the line and where to be flexible is a complicated business decision, and neither choice is without its risks. Further, while legal authority supports businesses returning to the office, businesses should also consider the impact such decisions will have on the workforce, including employee morale, retention, and company culture. As employers learn how to navigate through these new challenges, there are a few points to consider when handling these increased requests for remote work.
No Automatic Decisions/Blanket Policies
- Assess each request on an individualized, case-by-case basis.
- A policy that automatically says either “yes” or “no” regarding remote work is not recommended.
Considerations When Evaluating Remote Work Requests
- Employee’s job description. Review the employee’s actual duties. Have legitimate business reasons justifying an in-person/in-office requirement in your job postings.
- The nature and basis for request. Consider the reason(s) why the employee wants to continue working remotely. Is it for a physical and/or mental health reason? Or is it for convenience? The outcome of the request will vary depending on the answer.
- The impact on the operations. If the employee is part of a collaborative team where in-person work is an essential function of the job, consider the impact that the accommodation will have on the rest of the team’s ability to perform. Remember—an employer does not have to grant an accommodation if it makes work harder for other employees.
- Financial resources and costs. There will be costs associated with either decision. Costs of allowing the employee to work remotely may include equipment, insurance, expense reimbursements, and administrative and tax implications of complying with multiple states’ laws. Other cost considerations related to COVID-19 accommodations might include testing costs and vaccine incentive programs. On the other hand, the costs of not allowing the employee to work remotely may include higher employee turnover, loss of talent, and potentially loss of morale.
How To Manage Remote Work Requests To Reduce Legal Risk
When evaluating requests for remote work accommodations, there are several ways an employer can mitigate risk and reduce legal exposure.
- Written policy and training. Develop and implement a comprehensive, written policy to promote efficiency and streamline the process. It is also important to train managers on how to spot and handle legal issues, including potential issues related to increased accommodation requests. A written policy and proper training will better equip managers to handle and diffuse any potential issues before escalation.
- Disciplined documentation process. Proper documentation is crucial and can ultimately make or break a case for an employer. Employers should make efforts to implement a regulated system and to train personnel. For example, employers should document all conversations and interactions related to requests to work from home. Not only does proper documentation allow employers to spot patterns in requests and better assess credibility, but it also puts employers in a much better position to support and explain their decisions to either approve or deny requests.
- Review policies and confirm coverage. Before granting an accommodation request for remote work, employers should first review their workers compensation and workplace safety policies to confirm that insurance covers risks related to remote work. With employees working remotely and potentially in different states, it is important to determine how and to what extent these policies require updating to ensure compliance with applicable laws.
While the pandemic has changed the legal landscape, and employers face new limitations as a result, it remains true that employers do not have to eliminate essential job functions. Employers generally retain the ability to require physical presence as an essential function of an employee’s job. Nevertheless, employers should continue to engage in the interactive process and carefully assess each accommodation request to mitigate risks and ensure a smoother journey on the road back to “normal.”
Footnotes
1. 42 U.S.C. §§ 12112(a), (b)(5)(A).
2. 42 U.S.C. § 12102(1)(A).
3. Department of Health and Human Services and Department of Justice, Guidance on “Long COVID” as a Disability Under the ADA, Section 504, and Section 1557 (July 26, 2021).
4. EEOC, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws (last visited June 9, 2022).
5. Id.
6. Id.
Nick Johnson is a partner at Berenzweig Leonard and is an experienced litigator representing clients in the full spectrum of employment litigation matters, in addition to advising management and executive clients on HR compliance, restrictive covenants, employment contracts, and HR policies; investigating employee complaints; and conducting antidiscrimination training seminars. He has been recognized in the honorary list of “Legal Elite” in the Washington, D.C., region, is regularly selected as one of the Washington Area’s “Rising Stars” by both Virginia and Washington, D.C.’s SuperLawyers, and was recently recognized as a “Go To Lawyer” for employment law by Virginia Lawyers Weekly. He can be reached at njohnson@berenzweiglaw.com or (703) 462–8603.
Aleksey House is an associate attorney at Berenzweig Leonard, where her practice focuses on business litigation, employment law, and government contracts. Ms. House works with the firm’s Employment Law practice to represent and advise corporate clients and executives on a wide range of business and employment-related matters, including noncompete disputes, prime-sub disputes, breach of contract claims, labor and employment compliance, as well as commercial transactions. She can be reached at ahouse@berenzweiglaw.com or (703) 663–8185