Question

An employee is requesting remote work as an accommodation for his disability. He gave us a doctor’s note recommending that he be allowed to work from home at least two days each week. We finally have everyone back onsite and do not want to grant this request.  Do we have to allow him to work remotely?

Answer

You may be required to provide this accommodation.

First, engage in the interactive process as required by the Americans with Disabilities Act (ADA) and Massachusetts law to explore other possible accommodations.  There may be an alternative and less burdensome accommodation that will allow him to perform his job onsite. For example, different seating arrangements or equipment such as an ergonomic chair or a standing desk might be an appropriate accommodation for a back injury.

You may not deny a request for remote work based only on the fact that everyone else is required to be onsite.  The ADA allows you to deny an accommodation only if it presents an “undue hardship.”  This is a difficult threshold to meet – you will have to demonstrate that providing the accommodation requires “significant difficulty or expense.”  The undue hardship analysis factors include circumstances such as the size of your company and your resources, and it is not easy to prove.

The Massachusetts Commission Against Discrimination (MCAD) recently awarded an employee $75,000 in damages for emotional distress due to her employer’s refusal of her request to work remotely two days per week as recommended by her doctor.   The MCAD found that the employer violated Mass. Gen. Laws c. 151B, § 4(16), which, like the ADA, requires an employer to provide a reasonable accommodation unless doing so would cause the employer undue hardship.

The claim was filed in 2017, long before businesses adjusted to remote work as a readily available option for workers.  The employee worked from 2012 until her resignation in 2017 at an international medical products manufacturer headquartered in Massachusetts.   She initially worked in fleet management for the company’s sales team, but she began taking on the responsibilities of a buyer, and in 2016 her responsibilities were mainly as a buyer for the company.  She received positive performance reviews throughout her tenure.

In 2016 the employee began experiencing excruciating pain and ultimately was diagnosed with fibromyalgia in January of 2017.  In August of 2016, she first asked to work remotely part of the week to avoid making her 35-mile commute to work, as the drive exacerbated her symptoms.  Her supervisor denied the request outright.

Her supervisor’s position was that the employee could only perform her job, which required frequent interaction with suppliers if she was in the office to interface with the suppliers and her colleagues.  But the employee offered evidence that most of her interactions with suppliers were over the telephone or email.

In May of 2017, she presented documentation with her medical provider’s recommendation that she be allowed to work remotely two days each week.  At that time, the company was transitioning its leave administration and various functions to an outside provider, and nobody responded to her request.

Notwithstanding her positive performance reviews, the employee’s immediate supervisor asked human resources to work out a severance plan for the employee, an idea that the employee had earlier rejected. The employer also proposed various “on-premise” accommodations such as a schedule adjustment (to reduce her commuting time), a standing desk, and the use of a conference room for stretching.  The employee dutifully tried these accommodations, but they did not relieve her symptoms.  The employee resigned on November 1, 2017, and promptly filed her claim with the MCAD.

The MCAD’s decision cited the employer for the supervisor’s and human resource manager’s failure to engage in the interactive process and ordered all the company’s Massachusetts managers and human resources employees to attend an MCAD training on reasonable accommodation. They also ordered the company to pay the employee $75,000 in damages for emotional distress caused by the company’s actions, evidence of which the employee had provided during the hearing.

As you can see from this nearly six-year saga, it is unwise to issue a flat denial of a request for remote work as a disability accommodation.  At the very least, you must engage in an interactive dialogue to try to work out a solution that allows the employee to perform the job.

AIM members with questions about disability or any human resources matter may call the AIM HR Helpline at 800-470-6277.