Is Remote Work Here to Stay?
It all depends on the employer...
Some employers, primarily in the tech space, have permanently expanded their remote work policies because of the COVID-19 experience (i.e., Facebook, Twitter, Square, Shopify, Box, Slack, Nationwide Insurance and others) citing that the benefits outweigh the drawbacks…whether it be increased efficiency, environmental impact or the high cost of real estate.
…but other employers need to bring their employees back into the workplace. There was some initial concern by these employers that by permitting telework in response to the pandemic, that they would be obligated to continue to allow employees to work remotely once workplaces are permitted to reopen.
This week, the EEOC released guidance clarifying that if an employer allowed remote work during the COVID crisis, that does not necessarily obligate the employer to continue the WFH arrangement.
The fact that an employer temporarily excused performance of one or more essential functions when it closed the workplace and enabled employees to telework does not mean (i) that the employer permanently changed a job’s essential functions, (ii) that telework is always a feasible accommodation, or (iii) that telework does not pose an undue hardship – all of which are fact-specific determinations.
Given this latest EEOC guidance, it is even more important for employers who allow employees to work remotely to clarify that the WFH arrangement is intended to be temporary. One law firm suggests language such as “Because of the extraordinary situation in the workplace caused by the coronavirus, you will be working remotely for a temporary period. We understand that you might not be able to perform all of your job’s essential functions during this temporary period because you will be working remotely.”
The relevant sections of the EEOC guidance are as follows:
Assume that an employer grants telework to employees for the purpose of slowing or stopping the spread of COVID-19. When an employer reopens the workplace and recalls employees to the worksite, does the employer automatically have to grant telework as a reasonable accommodation to every employee with a disability who requests to continue this arrangement as an ADA/Rehabilitation Act accommodation?
No. Any time an employee requests a reasonable accommodation, the employer is entitled to understand the disability-related limitation that necessitates an accommodation. If there is no disability-related limitation that requires teleworking, then the employer does not have to provide telework as an accommodation. Or, if there is a disability-related limitation but the employer can effectively address the need with another form of reasonable accommodation at the workplace, then the employer can choose that alternative to telework.
To 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. The ADA never requires an employer to eliminate an essential function as an accommodation for an individual with a disability.
The 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. The employer has no obligation under the ADA to refrain from restoring all of an employee’s essential duties at such time as it chooses to restore the prior work arrangement, and then evaluating any requests for continued or new accommodations under the usual ADA rules.
Assume that prior to the emergence of the COVID-19 pandemic, an employee with a disability had requested telework as a reasonable accommodation. The employee had shown a disability-related need for this accommodation, but the employer denied it because of concerns that the employee would not be able to perform the essential functions remotely. In the past, the employee therefore continued to come to the workplace. However, after the COVID-19 crisis has subsided and temporary telework ends, the employee renews her request for telework as a reasonable accommodation. Can the employer again refuse the request?
Assuming all the requirements for such a reasonable accommodation are satisfied, the temporary telework experience could be relevant to considering the renewed request. In this situation, for example, 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. As with all accommodation requests, the employee and the employer should engage in a flexible, cooperative interactive process going forward if this issue does arise.