For more than a year, many American workers have been working from home. Now, as restrictions are lifting across the country, employers are beginning to call employees back to the office. Employers may see an uptick in requests to work remotely, particularly given the popularity of working from home. In responding to such requests, employers must be mindful of the Americans with Disabilities Act (ADA) and similar state laws.
Large portions of the American workforce report that they enjoy working from home, and the pandemic has shown telework is possible.
A recent study conducted by Harvard Business School Online reveals that some employees are not interested in returning to the office. The survey showed that 81 percent of respondents either don’t want to go back to the office, or would prefer a hybrid schedule (allowing them to work from home 2-3 days a week) going forward. One in three employees report that they felt that their overall performance and quality of their work had improved in the remote work environment, and the same percentage indicated that they are able to focus more at home than they are in the office.
And recent research from McKinsey & Company suggests remote work is here to stay. McKinsey analyzed more than 2,000 tasks used in 800 plus occupations, and found that 20-25 percent of the workforce in advanced economies could work from home three to five days a week without a loss in productivity. McKinsey found this was four to five times more work being performed remotely than before the pandemic.
Navigating increased requests for telework in the post-pandemic environment while mindful of the ADA and similar state laws.
Given employee hesitation and the increased prevalence of remote work, employers may see an uptick in the request to remain remote after the pandemic.
Providing the opportunity to continue remote work could help some employers in competitively recruiting and retaining employees who have a desire to work remotely. The ability to work remotely could also help employers increase the diversity of their workforce, as the geographic location of an employee matters less in a remote environment.
Other employers may feel that it is important to return to the office as soon as possible. For these employers, they must be mindful of responding to requests to work from home fairly and equitably.
Under the ADA, employers must provide “reasonable accommodations” to employees with disabilities that allows the employee to perform the “essential functions” of their jobs, without imposing an “undue hardship” on the employer.
Prior to the COVID-19 pandemic, many employers rejected requests for telework even when sought as a reasonable accommodation. Although these employers may be allowing employees to work from home now because of the pandemic, they are not required to automatically grant requests to work from home after the workforce re-opens. As the EEOC recently explained, “the fact that an employer temporarily excused performance of one or more essential functions when it closed the workplace and enabled employees to telework for the purpose of protecting their safety from COVID-19, or otherwise chose to permit telework, does not mean that the employer permanently changed a job’s essential functions, that telework is always a feasible accommodation, or that it does not pose an undue hardship.”
Instead, employers must engage in the interactive process to determine whether a request for telework post-pandemic is a reasonable accommodation. During the interactive process, employers should consider how the employee performed in the work from home environment when responding to a request to continue working from home after the pandemic. In this process, employers may find it challenging to justify pre-pandemic prohibitions on telework. Applicable state laws provide similar, and sometimes broader, protections, so employers must consider those as well.
Importantly, employers are likely to see an increase in requests to stay remote from non-disabled employees, as well. Employers should be mindful of responding consistently to these requests to avoid claims of discrimination. In short, employers may face a new landscape with regard to telework with both legal and market forces challenging past practices. Accordingly, employers should review their policies and practices as they proceed toward a post-pandemic world.