Question

Our company has been bringing employees back to the office in waves, with the last group now required to be in the office at least three days per week.  I just spoke with one of these employees and he said his doctor strongly encourages him to limit exposure to COVID, which he can only do by working from home.  I’m not sure what his medical condition is, but can we require him to be in-person at times?

Answer

The Equal Employment Opportunity Commission (EEOC) recently filed suit against an employer who refused to allow remote work for a customer service representative with a disability, even with a note from the employee’s doctor recommending that she continue to perform her job at home.  The employee took a leave, and at the end of the leave again requested remote work.  Once more she was refused, so she made the decision to resign rather than risk her health.

The employee filed a claim with the EEOC, which the EEOC then took to the U.S. District Court for Northern Georgia (Atlanta).  The EEOC process rarely leads to court action. The agency handles most claims internally, often brokering a settlement between the parties.  When the EEOC finds reasonable cause to believe discrimination has occurred and settlement efforts have failed, it can pursue court enforcement on its own or give the employee a ‘right to sue’ letter so that the employee can bring a claim in court.

The filing of this case signals that the concept of remote work as accommodation is a matter of importance to the EEOC.  The American with Disabilities Act (ADA), which the EEOC enforces, requires employers to make reasonable accommodations for qualified persons with disabilities.   The ADA allows employers to ask an employee seeking an accommodation to get a note from the doctor indicating that the requested accommodation is due to a disability, and that the accommodation will enable the employee to perform the essential functions of his or her job.

The employer should provide a job description for the employee to give to the doctor so she or he can base recommendations on the job’s essential functions. If the employer believes that the job is one that can only be performed in-person, it must prove that granting the remote work request is an ‘undue hardship’ to the company.

An undue hardship determination excuses the employer from making the accommodation. Undue hardship is defined as an “action requiring significant difficulty or expense” when considered considering several factors. These factors include the nature and cost of the accommodation in relation to the size, resources, nature, and structure of the employer’s operation.

Pre-pandemic, an employer generally would have had an easier time proving undue hardship for a request for remote work as an accommodation. Over the past three years, many workers have transitioned to remote or hybrid work, and have been able to successfully perform their jobs without being onsite full-time.  Depending on the industry and the position, this makes an undue hardship finding less likely.

At the same time, the COVID rates have significantly declined, and it may be less risky for employees with disabilities to be at work than it was two years ago.

Employers should follow the ADA’s requirements and engage in a dialogue with the employee to explore options that will allow the employee to safely continue working.

There may be an alternative that has not been requested, such as moving the employee’s workstation to a more isolated location.  The outcome of the EEOC case may give us better guidance, but for now employers should follow the ADA when considering a request for this type of accommodation.

AIM members with questions about remote work-as-accommodation, or any other huam resources topic may reach out to the AIM Employer Hotline at 800-470-6277.