This article was originally published in Law360 on June 1, 2023, and is republished here with permission.
The federal government recently announced the end of the COVID-19 public health emergency, and the three-year pandemic finally appears to be in our rearview mirror.
During the pandemic, employees across the country were permitted, and often required, to work remotely because of state stay-at-home orders to prevent mass spread of the virus, or as reasonable accommodation for certain disabilities under the Americans With Disabilities Act.
Now that the pandemic is over, employers are grappling with whether they must continue to allow employees to work remotely.
The bottom line is that employers are generally not obligated to permit remote work unless it is for reasonable accommodation under the ADA.
Businesses that allow employees to continue remote work as a matter of preference should consider whether they are obligated to reimburse employees for remote work-related expenses, such as utilities, electronic devices and traditional office supplies, or if these costs can now be cut.
The federal government has announced the end of the pandemic.
On May 9, the U.S. Department of Health and Human Services announced that the public health emergency would expire on May 11.1 This decision is based on recent COVID-19 trends that demonstrate the country is well positioned to leave the state of public health emergency.
This is due to increased availability and use of COVID-19 vaccines, greater accessibility to medical treatments and an over 90% decline in COVID-19 deaths and hospitalizations.2
Does your business have to allow employees to continue working remotely?
With the end of the public health emergency, employers across the country are asking whether they are still obligated to continue remote work.
At the start of the pandemic, many employers were requiring some or all employees to work remotely, job responsibilities permitting, to comply with public health and safety orders, and to prevent mass spread of the virus and the staffing shortages that could result if numerous employees contracted the virus or had close contact with those infected.
Now there is much less need for employees to work remotely as the majority of the adult population has acquired some level of immunity through vaccination or prior contraction of the virus,3 and the country has a better treatment infrastructure.
With the unique health concerns once posed by the pandemic fading from our memories, the reality is that employers typically are not required to permit remote work.
One exception to this is when remote work would constitute reasonable accommodation under the ADA. This scenario can still arise even though the public health emergency is over.
For example, telework can be a reasonable accommodation to reduce the likelihood that individuals with autoimmune diseases are exposed to viruses, or controlling environmental issues such as temperature and lighting that may irritate certain health conditions.4
In some situations, when an employee works remotely as a reasonable accommodation, the employer may be required to reimburse the employee for certain reasonable expenses related to remote work.5
However, the Equal Employment Opportunity Commission has issued guidance that the ADA does not require employers offer remote work merely because an employee finds it more convenient.6
Rather, remote work accommodation is only required if: (1) the employee's request indicates it is related to a disability or medical conditions associated with a disability, (2) no reasonable alternative accommodation is available that would meet the employee's need other than remote work and (3) permitting the employee to work remotely would not pose an undue hardship on the business.
Unless an employee's request to work remotely is related to a disability, you may require that employees report to the office for work. This has resulted in some employers transitioning to a hybrid model or a full return to the office.7
Is your business required to reimburse employees for remote work-related expenses?
As businesses evaluate whether to continue allowing employees to work remotely as a matter of preference, there's also the question of what obligations employers have to reimburse expenses related to remote work in a post-pandemic world.
Reimbursement requirements vary greatly by state, and 10 states currently have laws requiring employers to reimburse employees for remote work expenses under certain conditions.8
For example, Iowa takes a fairly employer-friendly approach, and only requires businesses to reimburse "expenses by the employee which are authorized by the employer and incurred by the employee."9 Further, employers have the option to reimburse the employee in advance of the expenditure, or within 30 days after the employee's submission of an expense claim.
Meanwhile, California's reimbursement law is much more employee-friendly, and requires employers to reimburse "all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or obedience to the direction of the employer."10 California courts have required employers to reimburse employees for a wide variety of remote work expenses under this Labor Code section.
In 2014, the California Second District Court of Appeal concluded in Cochran v. Schwan's Home Service Inc.11 that employers must reimburse employees for a reasonable percentage of cellphone usage, even if the employee incurs no additional out-of-pocket expenses from that work-related use, which is often the case with unlimited data plans today.
This analysis would likely apply to other remote work expenses as well, such as internet and electricity usage, and office equipment, and possibly even toilet-related expenses such as bath tissue, in light of the fact that restrooms are required for all workplaces.
In fact, in Williams v. Amazon.com Services LLC last year, the U.S. District Court for the Northern District of California denied an employer's motion to dismiss the plaintiff's claim under California Labor Code Section 2802 for reimbursement of expenses he incurred while working from home during the pandemic.
In this case, the plaintiff alleged his employer, a large tech company, expected him to work from home during the stay-at-home order and that he incurred expenses associated with the physical space, internet and electricity required to perform his job.12
But what must be included in the reimbursement column is only half the question when it comes to states like California.
Remember, the public health emergency is over. So in most circumstances, employers are not required to mandate a work from home obligation; rather, working from home today is much more a requested privilege.
So, in that situation, since the privilege is sought by the employee and not due to "obedience to the directions of the employer," as California Labor Code Section 2802(a) calls it, is reimbursement still required?
In California, probably yes. Remember that the first half of the Labor Code section specifically states reimbursement is required for "all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties."
Employees who are allowed to work from home will still be discharging their work duties, and therefore the reimbursement — at least in California — likely still is required.
Businesses should confirm their expense reimbursement obligations in states where they operate and where their remote workers live, and consider the price tag associated with allowing telework before making any long-term policy decisions on this issue. Everyone likely learned that remote work is possible due to the pandemic, but that does not mean it is required or even a good idea.
It is important that your business continues to thoroughly evaluate remote work requests that appear to be linked to medical conditions and may qualify as reasonable accommodation under the ADA or comparable state law.
Further, if you determine that an employee is requesting remote work simply as a matter of preference, and you allow it — which you typically are not required to do — you still must confirm your company is complying with state expense reimbursement laws, and should identify potential cost-saving opportunities that might not have been available during the height of the pandemic, when remote work was required.
2 For a summary of how the end of the PHE will affect various COVID-19 related procedures, such as access to vaccines, testing and treatments, telehealth flexibilities, Medicare and Medicaid waivers, and data reporting requirements visit the HHS and the Center for Disease Control websites at https://www.hhs.gov/about/news/2023/05/09/fact-sheet-end-of-the-covid-19-public-health-emergency.html and https://www.cdc.gov/coronavirus/2019-ncov/your-health/end-of-phe.html.
9 IA Labor Code 91A.3(6); https://www.legis.iowa.gov/docs/code/91A.3.pdf.
10 CA Labor Code Sec. 2802; https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=LAB§ionNum=2802.
11 Cochran v. Schwan's Home Service Inc., 228 Cal App 4th 1137 (Cal. App. 2014).
12 Williams v. Amazon.com Services LLC, No. 22-cv-01892, 2022 WL 1769124 (N.D. Cal. June 1, 2022).