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  • What is “Reasonable” as an Accommodation in the Post-Pandemic Workplace?

    We have known since March 2020 that un-ringing the work-from-home bell would not be easy.  The arrangement worked well for many employees and employers alike.  We also know from a recent poll conducted by Employers Group in partnership with LA Bizfed that over 60% of businesses expect some or all of their employees to continue working remotely post-pandemic.  This is an issue that will be confronting employers for a long time.

    Absent a blanket policy stating that all employees will be working remote 100% of the time, businesses (and in particular HR leaders) will be forced t make case-by-case decisions that will take into consideration the actual and/or perceived needs of the individual employee and the actual or perceived needs of the employer.  Complicating this is that each case-by-case decision may be seen as setting a precedent for the rest of the employees.

    A critical component for successfully addressing this will be a clear, well-articulated and compliant policy on the interactive process and reasonable accommodation.  Please continue to our blog for an enlightening case study on the reasonableness of reasonable accommodation.

    Permanent Work from Home Could Be Reasonable Accommodation

    Q         Our employee has filed an Americans with Disabilities Act (ADA) request with her psychiatrist to work from home permanently. Do we have to accommodate her? She already has performance issues, and no one else on her team is a permanent remote employee.

    A   Not necessarily, but you should engage in the interactive process to determine whether permanent work-from-home status is truly needed under the circumstances. Assuming she is actually disabled because of her psychiatric condition, you’ll need to assess whether working from home is a reasonable accommodation or would impose an undue burden on your operations.

    The Equal Employment Opportunity Commission (EEOC) has long taken the position that working from home can be a reasonable accommodation under the ADA, but reasonableness depends on the circumstances. If on-site work isn’t essential to her position, the telework request may be reasonable. But even if an accommodation is reasonable, it can still be denied if it would amount to an undue hardship for an employer. Courts tend to be less protective of accommodation requests seeking indefinite remote work as opposed to remote work on a limited and defined basis.

    Ultimately, to deny the request, you would need to show true undue hardship would result from permanent remote work. Making your case may be more difficult after the COVID-19 pandemic if she and similarly situated coworkers have worked effectively from home over the past year.

    Based on the information provided, you should at least engage in the interactive dialogue with her to discuss the request. If she insists on the need for permanent telework, you may have to establish either (1) the job requires in-person performance as an essential job function, or (2) accommodating the permanent work-from-home request will cause an undue hardship. When facing a situation like this, we recommend you speak with experienced counsel before making a final determination.

    Article courtesy of content partner BLR.  Author, Jeremy B. Merkelson is a partner in Holland & Hart, LLP’s labor and employment practice group, practicing out of the firm’s Washington, D.C., office.