This article originally appeared in Law360 on May 6, 2022. It is republished here with permission.
After roughly two years of isolation, the COVID-19 pandemic finally seems to be dissipating, which means employers across the country are starting to summon employees back to the office.
Not all employees are thrilled about it, which means many employers are facing resistance from employees who have grown accustomed to remote work.
Some of these employees seek accommodations for alleged medical conditions to allow them to continue working remotely, despite their employers' calls to return to in-person work. This article is a guide for employers navigating such accommodations requests.
Under the Americans with Disabilities Act, employers must provide disabled employees with reasonable accommodations unless doing so would pose an undue hardship.
When an employee requests an accommodation, an employer is required to engage in an interactive process with the employee, as well as his or her health care provider, to learn about the employee's disability and evaluate what accommodation would allow the employee to perform the essential functions of his or her role.
Among other things, reasonable accommodations can include part-time work; altered work assignments; specific working hours; or changing tests, training materials or policies. Employers are not, however, obligated to provide the specific accommodation requested by an employee.
Even before the pandemic, employees could — and did — request remote work assignments as reasonable accommodations. In the wake of the pandemic, however, a few things have changed.
Namely, many employees have grown accustomed to working from home and do not want to return to the office. Such employees may be more inclined than before to request an accommodation.
Similarly, because the pandemic forced many employers to adapt to work-from-home arrangements, some employees are now better equipped to argue that working from home is a feasible, and therefore reasonable, accommodation.
This notwithstanding, it remains true that employees have no stand-alone right to work from home. Under most circumstances, employers maintain the authority to require in-person work.
If an employee seeking a reasonable accommodation asks to work from home, an employer should take several steps before granting the request.
First, the employer should verify that the employee is a qualified individual. Under the ADA, it is unlawful for an employer to discriminate against a qualified individual on the basis of disability. Accordingly, if an employee is not a qualified individual, then an employer does not need to provide a reasonable accommodation.
A qualified individual is someone who meets legitimate skill, experience, education or other requirements of an employment position, and who can perform the essential function of the position with or without reasonable accommodation.
Second, the employer should verify that the employee has a disability covered by the ADA. Some conditions, such as temporary conditions, are not covered by the ADA.
Before granting an accommodation, the employer should engage in an interactive process with the employee and his health care providers. In the interactive process, the employer and the employee discuss the employee's disability and how it might affect his ability to perform his essential job functions.
The interactive process allows an employer to learn about the nature of the employee's medical condition and evaluate whether it is a disability covered by the ADA. If it is not, the employer may deny the employee's request for an accommodation.
Once the employer is satisfied that an employee is a qualified employee with a covered disability, the employer should start considering appropriate accommodation options.
Importantly, even if the employee and employer agree that a reasonable accommodation is warranted, an employee is not necessarily entitled to the accommodation that the employee desires, including remote work.
First, an employer does not need to grant a reasonable accommodation if it would impose an undue hardship on the business operations of the employer. "Undue hardship" means significant difficulty or expense.
The undue hardship inquiry takes into account the context of the particular business and the nature of its operations. It includes economic costs as well as indirect costs related to health and safety. The burden is on the employer to establish undue hardship.
Depending on the circumstances, working from home may cause an undue hardship. Indeed, remote work may cause an undue hardship even though an employer permitted remote work during the pandemic.
A business may have temporarily waived employee performance of one or more essential job functions during the pandemic to let employees work remotely until it was safe to return to in-person work. But employers have no obligation to permanently waive the performance of these job functions or refrain from restoring them now that it is safe to return to work.
Second, even if remote work would not cause an undue hardship, an employee is still not entitled to handpick their accommodation. If an employer agrees that a reasonable accommodation is warranted and that remote work would not impose an undue hardship, the employer can still explore and offer alternative accommodations.
In other words, an employer has an obligation to provide a reasonable accommodation — but not an obligation to provide the accommodation the employee prefers.
An accommodation is sufficient if it permits a disabled employee to perform the essential functions of their job. So, for example, an employee who asks to work remotely due to depression may instead be offered a modified work schedule or work assignment, depending on the circumstances.
Similarly, an employee who seeks to work from home due to a heightened vulnerability to a severe case of COVID-19 may instead be offered an altered working environment, coupled with heightened masking, sanitization and distancing protocols, depending on the circumstances.
Although the pandemic has changed the remote work landscape, it has not upended the legal framework for ADA accommodations.
Employers retain the ability to evaluate each employee's alleged disability and requested accommodation, consider the appropriate accommodation, and coordinate with the employee and her health care providers about what is necessary and appropriate.
For some employees, a permanent work-from-home arrangement will be necessary and appropriate — but only some. For many who ask to work from home, it may be appropriate to deny an accommodation altogether, or at least to offer an alternative accommodation in lieu of remote work.
Ultimately, deciding whether to grant an employee's request to work from home is a fact-specific determination that should only be made after careful consideration.