As more businesses transition from allowing remote work to mandating a return to the office, apart from the general employee backlash, one of the biggest HR compliance issues companies face is how to address the spike in medical-related requests to continue to work from home.
As part of its earlier guidance about what employers should know about COVID-19, the EEOC has said that when COVID-19 exacerbates a preexisting mental illness or disorder (such as significant stress due to the COVID-19 pandemic disrupting daily life), the employee is entitled to a reasonable accommodation (absent undue hardship).
And the EEOC is now backing up these words with action.
Yesterday, the EEOC announced an ADA lawsuit against a company that allegedly denied repeated requests by an employee with a disability for remote work as a reasonable accommodation due to increased risks related to COVID-19.
According to the EEOC’s suit, a customer service representative with a disability in the company’s call center repeatedly requested to work remotely as a reasonable accommodation because of her high-risk status for COVID-19. At the time (back in 2020), the employee’s call center co-workers were regularly testing positive for the virus, the EEOC said.
On her doctor’s advice, the employee requested remote work after a workplace COVID-19 exposure, and the company denied the employee’s reasonable accommodation request.
The EEOC further alleged that the employee went on medical leave until a remote position became available to avoid further exposure and the increased risks she faced if she contracted COVID-19. By the time the employee’s leave expired, most of the department was working remotely, but the company continued to deny the employee’s reasonable accommodation request. The EEOC said the employee was forced to resign to ensure her safety.
A couple of key facts here may distinguish this set of allegations from the situation now at your business. First, this lawsuit arises out of decisions made in 2020 — mid-pandemic. Also, the company seemed generally willing to allow others without disabilities to telework.
Meanwhile, in 2023, your business is requiring everyone to return to work. But that begs the question, is in-office work an essential function of the job? And, if so, why is it essential? These are questions that your company should be prepared to answer when employees with disabilities who have teleworked successfully now request to continue to work remotely.
If you’re not ready to plant your flag and defend the hill that in-office work is essential to the job, discuss with the employee how continuing to work remotely would assist and enable the employee to keep working.
As with any accommodation request, employers may ask questions to determine whether the condition is a disability and request medical documentation if needed. But, don’t get bogged down on this step. The bar for what constitutes a disability is so low. Instead, your focus should be to explore alternative accommodations that may effectively meet the employee’s needs. Those could include noise-canceling headphones, readjusted floorplans at work to decrease congestion, and permitting employees to take reasonable break periods if stress levels increase. For more information on COVID-19, stress, and mental health conditions, check out this resource from the Job Accommodation Network.
P.S. – Sorry about no blog post yesterday. It was my birthday and, perhaps, I spent a little too much time in the close company of Colonel E.H. Taylor, Jr. the previous evening.