Originally Posted On: https://www.employmentlit.com/2023/03/30/remote-work-is-here-to-stay/
By: Thevuni Athalage, Francine Foner, Esq. and Ty Hyderally, Esq.
Made common by the COVID-19 pandemic, remote work has seemingly transformed the workplace for the better. Prioritizing a flexible work environment has not only improved employee productivity but has also increased moral. Giving employees the option to work from virtually anywhere allows them to create a healthy work-life balance. Nonetheless, some employers continue to require their employees to come to the office most, if not all of the time. However, such policies can be challenged if they do not reasonably accommodate an employee’s disability.
In 2021, the Equal Employment Opportunity Commission (EEOC) brought suit against an employer for allegedly denying an employee’s request to work from home. EEOC v. ISS Facility Services, Inc., No. 21-0378 (N.D. Ga. Sept. 7, 2021). The plaintiff worked as a manager at the defendant’s facility. Due to COVID-19, the defendant required its employees to work on a hybrid schedule from March to June of 2020. This schedule consisted of employees working from home four days per week, and one day per week in-person. After this period, the defendant required employees to return to work on-site full-time. The plaintiff requested to remain on a hybrid schedule, working remotely two days per week, due to having pulmonary disease which made her more susceptible to contracting COVID-19. Under the Americans with Disabilities Act (ADA), an employer is required to provide reasonable accommodations to accommodate an employee’s documented disability, if the same would not cause the employer an undue hardship. While the plaintiff provided the necessary documentation, the defendant denied this request, even though it had previously granted similar requests from other employees. The defendant later fired the plaintiff for allegedly not meeting performance requirements. The suit then followed, in which the EEOC alleged that the defendant had violated the ADA by denying the plaintiff the reasonable accommodation of working remotely due to her disability, and then firing her in retaliation for her requesting the accommodation.
While this suit was ultimately settled with a payout and continued monitoring by the EEOC, it indicates that employers may be required to offer flexibility in the workplace on a more permanent basis than before the pandemic. Generally, employees do not have to reference the ADA or use language such as “reasonable accommodation” when seeking an accommodation. Tynan v. Vicinage, 351 N.J. Super. 385 (N.J.Super.A.D., 2002). An employee merely has to provide proof that they need an accommodation, and the burden then shifts to the employer to engage in an interactive process to determine what reasonable accommodations can be made. Id. Based on the EEOC guidance on telework in the COVID-19 world, employers have an obligation to participate in an interactive process to determine whether an employee should be permitted to work remotely when needed due to a disability. So long as an employee can show that they are able to perform the essential functions of their job while working on a hybrid or an entirely remote schedule, an employer would be hard pressed to show that such an accommodation poses any real hardship. The need for remote work goes beyond an individual employee’s preference of not having to go into the office. Being able to work from home can make the workforce more accessible to disabled employees, including those who are immune compromised due to COVID-19 .
Remote work may also be a reasonable accommodation for employees whose religion prevents them from complying with employers’ vaccination mandates. In a recent case filed in in the U.S. District Court for the Northern District of Georgia, Graves v. 3M Company, 1:23-cv-00888, James Michael Graves sued his former employer, 3M, for failing to accommodate his religious objection to 3M’s Covid-19 vaccine mandate, by allowing him to work remotely. 3M refused to grant Mr. Graves the requested accommodation of working remotely and fired him for refusing to be vaccinated. Mr. Graves alleges that he could have continued to work remotely, as he had been doing prior to the mandate. As of March 24, 2023, GM had not yet filed an Answer to Mr. Graves’ Complaint.
Since remote work was suddenly thrust upon the workforce as a result of the COVID-19 pandemic, employers and employees alike have become more savvy in using technology to work remotely. Remote work is no longer viewed as unusual; rather, working remotely is fast becoming more commonplace. Thus, it is likely that employees will be increasingly successful in showing that a requested accommodation of working remotely is reasonable and not a hardship on their employer.
To read more about the EEOC’s guidance on telework in the COVID-19 age, click here: https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws#D. If you think your employer is violating your right to continue to remote work, you may want to contact a Hyderally & Associates attorney today.