This article was originally published at The Filament on July 12, 2021. (Subscription Required)
Employers can and should expect continued resistance to in-office work from employees with disabilities or medical conditions that put them at higher risk of contracting Covid-19. Before the pandemic, employers often refused accommodation requests, arguing that essential job functions could not be fulfilled at home and that remote work setups would place an undue hardship on the organization. In the wake of the pandemic, that argument will be harder to make with a straight face and without legal risk.
"After working remotely for the last 15 months, unless employers can show a real detrimental harm to the business, it's going to be difficult to show why they cannot accommodate work from home, other than that they don’t prefer it," Jessica Mason, a labor and employment attorney with Foley & Lardner LLP, tells The Filament.
Corporate preference is not an excuse if employees face a demonstrable risk or obstacles to doing their work, according to the ADA.
While remote work can be denied where in-person work is essential – motherboards cannot be soldered remotely – an employer’s preference for in-office work does not meet the legal definition of "undue hardship," Mason says.
"The law says you have to fully explore and engage in an interactive process with the employee to determine whether their request is reasonable," Mason says. "If an employee cannot do their job properly, or if it would cost you a lot of money to build new infrastructure for an employee to work remotely, then it’s an undue burden. But it's a high bar."
The low cost of communication software makes it even higher.
But with the legal obligation to consider alternative work situations comes an opportunity. From a talent perspective, companies willing to make remote accommodations can massively expand their talent pool. And they may have to do it regardless as flexible work becomes a norm as larger companies go that route. Still, there are tactical considerations to consider in light of the "undue burden" statute. Employers need to understand what jobs need to be done on site and managers need to be trained to anticipate and accommodate requests then properly document them to avoid litigation.
"Your managers are your first line of intake," Mason says. "Employees sometimes go straight to HR, but more frequently they test the waters with their manager, because that’s the person they deal with every day."