Q&A: Evaluate request for permanent remote work under ADA – Technologist

Question: During the pandemic, we allowed some employees to work from home on a case-by-case basis. We brought everyone back to the office gradually and our policy now requires all administrative personnel to work onsite. One of our admin employees who worked remotely has requested to work from home permanently due to a chronic health condition. We can deny this request because their job must now be performed onsite, right?

Answer: Not so fast. Don’t dismiss any request for disability accommodation out of hand or you risk violating the Americans with Disabilities Act (ADA). Before making a decision, you must ensure that the company has fulfilled all of its duties under the ADA. The ADA requires employers with 15 or more employees to provide reasonable accommodations to qualified individuals with disabilities if they need an accommodation to perform all essential functions of their job. You may have to make an exception to company policy, as long as it doesn’t cause an undue hardship to the company or a direct threat to health and safety. HR’s response to every request for disability accommodation should be to initiate and drive the interactive process with the employee. This involves gathering sufficient medical information, obtaining input from the supervisor, and communicating with the employee about options. An applicant or employee isn’t necessarily entitled to the accommodation they ask for, but it is the employer’s responsibility to identify and consider other accommodations that may be reasonable and effective.

Just claiming in-person work is “vital” isn’t enough
The fact that you allowed remote work during the pandemic doesn’t necessarily mean that you’re locked in to continuing to offer it. The extraordinary public health concerns during the pandemic may have forced you to allow remote work at that time, but depending on the job you may be able to show that it wasn’t satisfactory from a business standpoint. Perhaps not all tasks were performed, or the employee’s work was less efficient, or coordination between departments was impaired. Merely stating an opinion that in-person work is important won’t be enough, though. If challenged, you’ll need to provide specific examples and documentation to support your reasons why continuing to allow remote work would be an undue hardship.

Essential job functions, accommodations, and reassignment
The ADA doesn’t require employers to eliminate or delegate essential functions of a job to others. However, the company must be able to prove that physical presence is required to perform all the essential functions of this employee’s particular job. HR should also determine if this type of accommodation has been granted to other employees. If so, the company must be able to articulate, with facts, how this situation is different. If you cannot provide a reasonable accommodation for this employee in their current position, the ADA analysis isn’t done yet—reassignment should be considered. The company has a duty to identify vacant positions for which the employee may be qualified before separating employment based on inability to provide a reasonable accommodation. In fact, this duty continues for a reasonable time after separation. The Equal Employment Opportunity Commission (EEOC)’s enforcement guidance on reasonable accommodation and undue hardship under the ADA says, “A ‘reasonable amount of time’ should be determined on a case-by-case basis considering relevant facts, such as whether the employer, based on experience, can anticipate that an appropriate position will become vacant within a short period of time.”

The ADA is a tricky area of law because there are so many gray areas when determining what is reasonable. Don’t hesitate to contact your Vigilant Law Group employment attorney for assistance with an ADA analysis and documentation. For more information, see our Legal Guide, ADA: Reasonable Accommodations and the Interactive Process, which outlines a step-by-step process for analyzing disability accommodation requests.