Examining the Future of Remote Work in a Post-COVID World

Attorney: Mary Watson Fisher | Published 8.17.23

Does the fact that an employee worked remotely during the COVID-19 pandemic require an employer to continue allowing remote work post-COVID, despite their call for employees to return to the office?

During the last three years, remote work has become ubiquitous. What began as an involuntary health and safety protocol has snowballed into what many call the new standard of work. But what does this mean for employers who wish to compel their employees to return to the office? Understanding the benefits and drawbacks of remote work and how it will impact an employer’s obligation to accommodate their disabled employees in the future is imperative.

California, at the direction of Governor Gavin Newsom, lifted its COVID-19 health emergency on February 28, 2023, and the United States Department of Health and Human Services followed suit by lifting its own COVID-19 health emergency on May 11, 2023. Consequently, many employers who allowed their employees to work remotely during the pandemic have begun requiring them to return to the office full-time or at least a few days a week. But not all employees are willing to give up remote work so quickly.

What are an employer’s legal obligations to accommodate an employee who says they must continue to work remotely due to a disability? The analysis of whether an accommodation is reasonable or creates an undue hardship to the employer is a fact-driven, individualized assessment that varies depending on the employee, the limitations created by their disability, and the essential functions of their position. Before the pandemic, remote work may or may not have been a reasonable accommodation based on the outcome of this individualized assessment. The question now is whether, post-COVID, it is more difficult for employers to deny remote work as a reasonable accommodation.

What is the Law?

Under the Americans with Disabilities Act (“ADA”), an employer with 15 or more employees must, absent undue hardship, provide reasonable accommodations to their applicants and employees as they relate to three aspects of employment: 1) ensuring equal opportunity in the application process, 2) enabling a qualified individual with a disability to perform the essential functions of a job, and 3) making it possible for an employee with a disability to enjoy equal benefits and privileges of employment.

Under the California Fair Employment and Housing Act (“FEHA”), employers with five or more employees must provide reasonable accommodation for individuals with a physical or mental disability to apply for jobs and perform their jobs’ essential functions, unless doing so would cause undue hardship.

State and federal law also require the employer to engage in an interactive process with the disabled employee to identify a reasonable accommodation. The interactive process is a discussion between the employer and the employee about the employee’s disability and its resulting limitations on the employee’s ability to perform the essential functions of their job. The employee, their healthcare provider, and the employer must work together to identify accommodations that will allow the employee to perform the essential functions of his job based on the employee’s limitations.¹

If there are multiple possible accommodations, the employer is not obligated to grant the accommodation suggested by the employee or their healthcare provider as long as the alternative is adequate in removing the disability-related workplace barrier. Therefore, the employer can choose a reasonable accommodation that best suits its needs if the ADA and FEHA requirements are satisfied. Moreover, an employer need not provide a disability-related accommodation that would alter or eliminate an essential job function.

Similarly, an employer is not required to provide an accommodation that would create an undue hardship to them. Under both the ADA and the FEHA, whether an accommodation creates an undue hardship is a fact-driven analysis that is determined on a case-by-case basis. The law defines undue hardship as costly, extensive, substantial, disruptive, or fundamentally altering the business’s nature or operation. Generally, a larger employer with greater resources would be expected to make accommodations requiring more effort or expense than would be required of a smaller employer with fewer resources.

Can Regular In-Person Attendance Be an Essential Job Function?

The Equal Employment Opportunity Commission (“EEOC”) uses the following factors to determine the essential job functions of a position: (1) the employer’s judgment as to which functions are essential; (2) written job descriptions; (3) the amount of time spent performing the function at issue; (4) the consequences of not requiring the employee to perform the function at issue; (5) the terms of a collective bargaining agreement; (6) the experience of past employees in the job; and (7) the experience of current employees in similar jobs.²

Several recent cases have held that regular, in-person attendance may be an essential job function. For example, the Sixth Circuit Court of Appeals in EEOC v Ford Motor Co. (6th Cir. 2015) 782 F.3d 783, ruled that an employer may refuse a telecommuting request when, among other things, the job requires “face-to-face interaction and coordination of work with other employees,” “in-person interaction with outside colleagues, clients, or customers,” and immediate access to documents or other information located only in the workplace.

Similarly, the Tenth Circuit Court of Appeals in Unrein v. PHC-Fort Morgan, Inc. (10th Cir. 2021) 933 F.3d 873, held that the employer did not violate the ADA by terminating plaintiff’s employment because her requested accommodation for a flexible and unpredictable work schedule was not reasonable. Plaintiff’s position required her to maintain at least four hours of in-person and face-to-face interaction with patients at the hospital to give competent care. Therefore, the employee’s request to work remotely, thereby eliminating an essential function, amounted to an unreasonable request.

On the other hand, even before the pandemic, other courts have looked at an employer’s history of allowing remote work as a relevant factor in determining whether in-person attendance is an essential job function, and whether an employer must accommodate a disabled employee’s request to telework. Montague v. United States Postal Service (5th Cir. 2023) US App. Lexis 16359, is an example of such a case. The plaintiff in this case requested to work remotely in the mornings and at her designated worksite in the afternoons to accommodate her disability. Her employer denied the request, stating that in-person attendance was an essential job function. The plaintiff presented evidence of two other employees in her exact job position that successfully worked remotely. The court found this evidence was relevant to determining whether the plaintiff’s request for accommodation was reasonable and whether in-person attendance was an essential job function.

Additionally, the Second Circuit Court of Appeals in Laguerre v. National Grid USA (2d Cir. 2022) US App. Lexis 6328, relied in part on the employer’s history of allowing remote work in holding that remote work was a reasonable accommodation for a call center employee who suffered from a disability. The court rejected the employer’s argument that allowing the employee to work remotely was an undue hardship based on evidence that the necessary technology existed for the plaintiff to perform the essential functions of her job from home and that the employer had created such remote positions in the past.

How has COVID Affected the Ability of an Employer to Require In-Person Attendance at Work?

While it will take some time before we know the full impact, it is likely that remote work during the pandemic will make it more difficult for employers to deny remote work as a reasonable accommodation. This is particularly likely when the request is for temporary remote work versus remote work for a permanent or indefinite period.

Recent EEOC guidance states that assuming all the requirements for a reasonable accommodation are satisfied, an employee’s temporary telework experience during the pandemic is relevant to considering whether a current request for remote work is a reasonable accommodation. Specifically, under EEOC guidance, the period of telework during COVID-19 could serve as a trial period that shows whether a disabled employee is able to satisfactorily perform the essential job functions while working remotely.³

Notably, EEOC guidance also says even if an employer chose to excuse employees from performing essential job functions (including presumably regular, in-person attendance at work) during the pandemic, an employer has no obligation to permanently eliminate those essential job functions as a disability-related accommodation.⁴

Thus, just because an employer allowed remote work during the pandemic does not necessarily guarantee that it is obligated to allow remote work post-COVID, especially if it would require continued excuse of an essential job function.⁵

Take-Aways for Employers

Employers should have written job descriptions that identify the essential functions of each position. While job descriptions are not conclusive, they are nevertheless important to supporting the employer’s argument as to the essential job functions. If regular, in-person attendance is an essential job function of the position, the job description should so state, and should also include an explanation of why it is an essential job function. For example, the position requires teamwork and collaboration, including in-person and face-to-face interaction with team members and supervisors, or requires in-person interaction with customers and clients to assess their needs.

Additionally, employers should always require employees seeking accommodations to provide appropriate medical certifications from a health care provider in support of a request for a disability-related accommodation. The purpose of the certifications is to assist the employer in understanding the disability-related limitation that necessitates accommodation and to provide confirmation that an accommodation is actually required.

Finally, it is critical that employers carefully and meticulously document the interactive process with the employee. The documentation should include a record of when each interactive meeting occurred, who was in attendance, a description of what was discussed including alternative accommodations, and whether the employer and employee reached an agreement.

Disability discrimination lawsuits against employers have been on the rise for the past several years. We expect this trend to continue, particularly in the wake of the COVID-19 pandemic. As these cases wind their way through the court system, we expect to see more decisions from state and federal courts that address remote work as a reasonable accommodation and employers’ obligations in a post-COVID world. Considering the recent EEOC guidance, we expect courts will include whether an employee successfully performed the essential functions of her position remotely during the COVID-19 pandemic in their analysis of whether an employer may compel that same disabled worker to return to the office, post COVID. Stay tuned over the coming months and years for more updates and guidance in this complicated area of the law.

For more information, or specific guidance, please contact Mary Watson Fisher.

Legal Intern Kaja Bojic contributed to this article.

Footnotes:

1
U.S. Department of Labor (dol.gov/agencies/odep) (2023).
2
Credeur v. Louisiana (5th Cir. 2017) 860 F.3d 785.
3
U.S. Equal Employment Opportunity Commission, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” (9/8/20; adapted from 3/27/20 Webinar Question 21)(eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws, at D.15).
4
U.S. Department of Labor (dol.gov/agencies/odep)(2023).
5
U.S. Equal Employment Opportunity Commission, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” (9/8/20; adapted from 3/27/20 Webinar Question 22)(eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws, at D.16).

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