[co-author: Tommy Rogers]

Seems like every other day we hear about some company calling employees back to the office. Some go better than others. I am not the first person to say this, but we’re entering and setting up camp in a new era of work. Employers and employees have to ask themselves where they want to work and why that’s important.

When you watch or read some of these “return to work” videos and emails, they all emphasize how important it is to be working together in the office. Internet Brands CEO Bob Brisco said: “We’re getting more serious about getting everyone back into the office for the simple reason that we’re better when we’re together. We move faster and we get better results.” Our Labor & Employment team at Bricker Graydon gets a lot out of being able to bounce ideas off each other in the same room. But we also know we can do excellent work from different places. Technology can be a wonderful tool to allow people to work from anywhere.

This comes into play when employees are asked to return to the office, and an employee requests an accommodation to remain working at home. It’s important to note the distinction between a request to work from home and a request for an accommodation to work from home. An employee may request to work from home out of personal preference which does not trigger a legal duty to engage in discourse with the employee. But, a request for an accommodation to work from home linked to the employee’s disability does trigger the requirement to engage the employee in discussions on reasonable options.  

Which brings us to the principal question: is working in an office an essential function of the job? If an employee was able to successfully work remotely during the pandemic, is on-site work post-pandemic really essential?  In keeping with traditional lawyer-speak: it depends.  For a discussion of similar issues, please read a related post by our colleague Dan Burke from 2020 posted in the thick of COVID.

The American’s with Disabilities Act requires employers to provide employees with a reasonable accommodation for a covered disability, if the employee can perform the essential duties of their role with the accommodation, provided the accommodation does not create an undue burden. If remote work could be a reasonable accommodation (even though other employees are working in the office) and that employee can perform all of their essential duties remotely, could that be a reasonable accommodation?   Some courts have answered yes. In Mobley v. St. Luke’s Health System, Inc., the employee was permitted to telecommute two days per week, with additional days permitted on a case-by-case basis. The Eighth Circuit found the employee could possibly show that “he was able to perform the essential functions of his job through his proposed accommodation of teleworking while he experienced a flare-up of his condition.”  This is consistent with guidance from the U.S. Equal Employment Opportunity Commission (EEOC). The EEOC has stated temporary telework experience during the pandemic could be relevant when considering a renewed request for remote work.

The EEOC’s guidance reaffirms three key ADA principles when determining remote work as a reasonable accommodation.

• The right to remote work is not automatic.
• The employer does not have to eliminate an essential function.
• A temporary accommodation is not a permanent change of job duties.

What Should an Employer do?

1. If an employee asks to work remotely as an accommodation, follow your full, interactive ADA accommodation request process.
2. If the employee successfully worked remotely in the past, this can be a factor to consider. But, it is not necessarily determinative.
3. Understand the essential functions of the job. If it’s essential to be in the office, make sure you know why and reasons to support it.
4. This process can be tricky.

The pandemic did not upend the legal framework of the ADA. Employers retain the ability to evaluate each employee’s alleged disability and accommodation request, consider the appropriate accommodation, and coordinate with the employee and health care providers about what is necessary and appropriate.  For some employees, a permanent work from home arrangement will be a reasonable accommodation, but not for all. Ultimately, deciding whether to grant an employee’s request to work from home is a fact-specific determination that should only be made after careful consideration. 

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