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  • Now More Than Ever – The Interactive Process is Critical

    Two months ago, we ran an article detailing the extensive fines a Los Angeles employer was facing for failing to adequately provide reasonable accommodation.  Just in case every detail of this article is not still fresh in your mind, it can be accessed still through our blog:

    Los Angeles Employer Facing Stiff Penalties for Reasonable Accommodation Failure – Employers Group

    The article, in part, was intended as a precursor to something we knew would become a major issue for all employers, nationwide, and that is dealing appropriately with accommodations for employees being asked to return to the workplace after spending the last 14 months at home.  The initial step in identifying accommodations is generally the process of engaging in the interactive process.

    With more workers being invited back into the workplace as the COVID-19 pandemic appears to be subsiding, you can expect an uptick in requests for disability accommodations to continue working remotely in some capacity, even when the asserted disability isn’t coronavirus-related. If the past is any indication of the future (and in this case, I think it is), managers and HR pros would be wise to dust off their interactive-process hats.

    For a detailed overview of this critical issue, please continue to our blog.

     

    Dust Off Your Interactive-Process Hats as

    More Remote Workers Are Recalled

     

    What Got Us Here

    Until recently, having a preexisting medical condition bumped you to the front of the line for eligibility to receive a COVID-19 vaccine in Florida. But as of April 5, 2021, all Floridians age 18 and older (16 and older for Pfizer) became eligible to receive the shots.

    As a result, I suspect management will sound the “all clear” in the next few months and ask employees to return to the office. I also suspect you’ll see pushback from employees with disabilities who will continue to request “work from home” as a reasonable accommodation. If you have any doubt, consider this:

    Last month, the [Equal Employment Opportunity Commission (EEOC)] published its annual statistics for charges of discrimination filed in 2020. The report shows a notable drop (7%) in total charges of discrimination filed in 2020 as compared to 2019. And yet, the number of charges filed on the basis of disability as a protected class actually increased slightly from last year (24,324 charges in 2020, up from 24,238 in 2019). This increase of 86 more charges on the basis of disability in 2020 over 2019 is significant, given the overall decline in total charges filed across the various protected classes.

    You also should stand ready to manage requests from employees who don’t wish to be vaccinated because of a sincerely held religious belief and therefore ask to continue remote work arrangements for some time.

    Best Practices

    Consider each accommodation request on a case-by-case basis, and engage in the interactive process with the employee. Remember in Florida, if an employee in a protected class is able to perform the essential job functions with or without a reasonable accommodation, you may satisfy the duty to accommodate by providing any reasonable accommodation, so long as it doesn’t place an undue hardship on your business.

    You need not grant the specific accommodation requested by the individual. Before a decision can be made, however, you and the employee must engage in the interactive process.

    Working from home may be one of a number of possible reasonable accommodations, depending on the individual circumstances. Other accommodations may include (without limitation):

    • Changing an employee’s work days or hours;
    • Moving her work station or reporting location at her request;
    • Staggering employee schedules; or
    • Implementing other physical or logistical measures within the workplace.

    Bottom Line

    If you determine continuing a previous remote work arrangement constitutes an undue burden, you must be able to articulate and prove the specific reason(s) if put to the test. When in doubt, consult legal counsel.

    Article curtesy of content partner BLR, provided by the Miami office of Stearns Weaver Miller, a full-service law firm.