Analysis

6 Tips For Employers Tackling Post-Virus Telework Requests

By Anne Cullen
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Law360 (September 23, 2020, 3:42 PM EDT) -- The Equal Employment Opportunity Commission has said that businesses don't have to approve every telework request going forward just because they shifted operations online during the COVID-19 pandemic, but experts advise that this year's experiment in teleworking means that employers will have to handle such petitions from disabled workers more carefully.

In guidance issued Sep. 8, the EEOC made clear that a company's ability to transition to telework to weather a global health crisis does not mean this approach should be forevermore considered a "reasonable accommodation" for that employer to make under the Americans with Disabilities Act.

This advice was likely met with a sigh of relief by companies that would prefer their workers to return to the office once the coronavirus becomes less of a threat. However, lawyers advise that this year's widespread shift to remote work arrangements means company decision makers will need to devote additional attention to a disabled worker's petition to clock in from home down the road. 

"Employers will have to look a little more closely at those requests," said Littler Mendelson PC shareholder Jim Paretti, former chief of staff and senior counsel to former EEOC acting Chair Victoria Lipnic. "If a year ago, the inclination was to decline requests for telework in all but the most extreme circumstances, they may have to revisit that with a more factual basis."

Here are six ways that businesses can fairly assess remote work requests that come in after the global health crisis winds down.

Reexamine Any Past Opposition to Telework

While employment lawyers read the EEOC's recent guidance as a reminder that the pandemic hasn't changed the law surrounding ADA accommodation requests, they say there's no denying that the crisis has established telework as a viable option for many employers.  

"I think what the last six months have shown is that employers can have a little bit greater trust in the feasibility of these arrangements," said Skadden Arps Slate Meagher & Flom LLP labor and employment partner Karen L. Corman.

Businesses that have consistently pushed back on telework in the past would be wise to reevaluate, she said. Corman added that companies can install reasonable parameters around any remote arrangement to make sure that workers are staying focused, but she noted that in her experience, employees are stepping up to the task. 

"Before you say no reflexively to continued telework as a potential accommodation, you really have to look closely at this period where, if you're an employer who has had people working from home, how it has worked and how it hasn't," she said.

Record the Telework Experience

In that same vein, experts say employers would be wise to keep track of how this year's remote work arrangements affected company operations and output, according to Nonnie Shivers of Ogletree Deakins Nash Smoak & Stewart PC.

"You need to be evaluating the effectiveness of these in terms of communication, performance, objectives or deliverables," Shivers said. "You need to have some method during this crisis to evaluate the efficacy of this accommodation and what tasks are falling by the wayside that may need to be restored and why."

The EEOC's guidance earlier this month advised businesses to use this year's teleworking experience as a trial period for how a disabled employee handled remote work and that "the employer should consider any new requests in light of this information."

Corman said companies should take a look at a worker's track record during the pandemic to evaluate future requests. "If they can fulfill those functions from home, you're going to have to take the request seriously," she said.

On the other hand, compiling a record of situations where telework arrangements weren't ideal will strengthen a company's defense in the event it denies a worker's petition to stay remote, said Akin Gump Strauss Hauer & Feld LLP partner Esther Lander.

"Employers are likely to receive a potential avalanche of remote work requests in view of having worked remotely in a successful way for so long," Lander said, so companies should begin "documenting where it's not working."

Don't ignore missteps or disruptions brought on by telework, but make a record of them, she said. That way, companies have a basis to argue in the future that remote arrangements don't make sense for certain employees or situations.

Don't Bank on an 'Undue Hardship' Defense

Under the ADA, an employer is legally allowed to reject an accommodation request if it presents an "undue hardship," which the EEOC defines as a "significant difficulty or expense" based on the resources of the particular company. 

Even before the pandemic, workers and employers frequently sparred in court over whether employers violated the federal law by refusing to let disabled workers do their jobs from home.

Littler's Paretti said he thinks businesses may have a tougher time convincing courts that telework falls under the "undue hardship" category after workers have already spent months out of the office.

"There may be more room for employees to argue that they were able to do the essential functions of their job and do them successfully," Paretti said. "It may be a little bit harder for employers in some of these cases to make an undue hardship argument."

Whether a worker was able to get everything done without being in the office will definitely come up in future legal battles over reasonable accommodations, said University of South Carolina School of Law professor Joseph Seiner, who previously logged more than five years with the EEOC as an appellate attorney.

"It is certainly evidence that somebody is able to perform the essential functions of a job from home at one point," Seiner said. The burden may "shift to the employer to explain why it wouldn't be a reasonable accommodation in the future."

Be Clear If In-Person Attendance Is 'Essential'

If workers are forgoing their jobs' essential functions to remain safely at home during the health crisis, the EEOC has advised that their request to continue that arrangement after the office reopens "does not have to be granted if it requires continuing to excuse the employee from performing an essential function."

However, experts say that it's the responsibility of company leadership to inform employees what their jobs will look like in the future and whether they should plan on a return to the workplace.

"I think what the pandemic has taught us is that in a lot of circumstances remote work is possible," said O'Melveny & Myers LLP partner Adam Karr. "So to the extent that physical presence is an essential function of a job position, that needs to be clearly delineated by the employer."

If an employer expects people to start coming back to the workplace once the threat wanes, Akin Gump's Lander added that company leaders should ensure their workforce gets this information ahead of time and in writing. "In allowing people to go remote, lay a foundational written record that you're doing this because of the virus, but that this is an office job," she said.

Avoid One-Size-Fits-All Remote Work Policies

Installing caps on how many people can work from home at once can put employers on shaky ADA ground, said Shivers of Ogletree, because the law mandates companies make personalized decisions.

"Employers need to be cautious of that and make sure that they have done individualized assessments," she said.

Under the ADA, employers have to engage in an interactive dialogue with their workers on an individual basis that is fact-specific, and Shivers said company leaders may be in danger of bypassing that process if they implement a systemic rule.

"I don't think having that type of statistical expectation excuses an employer necessarily from going through the interactive dialogue to consider those requests and propose alternatives that will work," she said.

Don't Assume Telework Is the Only Solution

Telework isn't the only way to accommodate a disabled worker, and Shivers said businesses should make sure they're getting the information they need from the health care professionals treating their employee to arrive at the best solution.

"Some employees prefer to telework or work from home but it is not a necessity to accommodate their disability," she said. "This is where employers really have to have documentation and paperwork from health care providers for their employees that support the need for this as a necessary accommodation."

She recommended employers come up with their own set of questions to get specifics on how effective the doctor believes a remote arrangement would be, what essential functions of the employee's job might have to be sacrificed while teleworking and how long the accommodation would need to last.

"You really want to have a robust set of documentation that is not just a note from a doctor, but something the employer is drafting in order to get the questions answered that they need to assess that accommodation," Shivers said.

If there's another situation that might work better, the EEOC has advised that businesses are clear to take that route, even if they went remote during the pandemic.

"If there is a disability-related limitation but the employer can effectively address the need with another form of reasonable accommodation at the workplace," the EEOC's recent guidance said, "then the employer can choose that alternative to telework."

--Additional reporting by Braden Campbell. Editing by Jill Coffey and Kelly Duncan.

For a reprint of this article, please contact reprints@law360.com.

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