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04.06.21

Work-from-home accommodations in the post-COVID-19 remote workforce

BY , David A. Kaufman

How will shifting work-from-home trends impact workplace accommodations? David Kaufman speaks with Nixon Peabody Labor & Employment attorney Kimberly Harding about the acceleration of remote work trends and what that means for workplace accommodations in the post-COVID-19 workforce.



This conversation has been edited for length and clarity.

DK: During the pandemic, we've seen a lot of folks working from home. I think it also changed employers' understanding when they have been asked before by employees, "can I work from home because I have a disability"? Some employers had felt that gets very difficult, given essential job functions.

KH: We've seen kind of a fundamental shift in the work-from-home calculus and which positions are capable of being performed from home. As we continue to evaluate the essential functions of various positions, whether an on-site presence is required will become a much more difficult analysis, given that so many employees have now worked from home.

DK: Maybe you can explain what an essential function is, and how that is determined?

Kim: Sure, the essential functions of a position are those that are required for an employee to perform. From the perspective of the Americans with Disabilities Act (ADA), a reasonable accommodation is not one that eliminates an essential function of a position. These are the things that absolutely have to get done. If you are a cashier at the grocery store, you can't request an accommodation that doesn't have you at the cash register and swiping items. Similarly, as an attorney, if I wanted an accommodation that said I didn't have to speak with clients, that would not be reasonable as a matter of law, right, because that is part and parcel of what I'm being paid to do. We need to make sure that accommodations assist with the performance of the position's essential functions and don't eliminate them.

DK: Can you give me an example of how the pandemic has changed how we define an essential function?

Kim: Sure, I think that the pandemic and the shutdown orders, in particular, really caused a lot of employers to pivot, changing their mindset, requiring a lot more flexibility or accommodations to enable employees to work from home. Was it certain equipment? Was it certain changes in company culture? Becoming more accustomed to using Zoom and those types of technologies, etc.? All of that has really changed over the past year.

In addition, when we look at essential function analysis, mindsets have shifted with respect to how much is an on-site presence or interaction with other employees required. I think previously that analysis has been tough for employers for a lot of positions. But certainly, as everyone has proven over the last year that they are capable of working from home and that they can be productive working from home, it is much more difficult to deny a request to work from home on the basis of a disability.

DK: What about hybrid function? I have been hearing a lot that employers are going to be bringing people back to work—some in the office and some at home. How does that interface with this notion of wanting to work from home from a disability standpoint? Is it an on-and-off switch? Do you have to work from home all the time or can you also be required to spend some time in the office? 

KH: Accommodation requests are really driven by the physician's orders and what kind of accommodation the employee's medical provider requests. But I do think that you are right, with respect to these hybrid arrangements. There is going to be a diversity of approaches, and they may not be driven by the ADA or any legal requirements but probably, more so, by desires to recruit and maintain the best talent. Certainly, if employees want to work from home or they want to do a 2+3 or a hoteling concept, as we see some of our clients consider, that opportunity becomes attractive. That type of flexibility, that type of ability to kind of work wherever, in a way that also works for the employee, enhances most positions or most employees are going to seek that out and that may be a primary driver in a job market.

DK: We were talking earlier and you said there might be a surge of interest in working from home from a disability standpoint. Why do you think that's the case?

KH: I just think there is going to be a surge in interest in continued work-from-home arrangements generally, whether they are driven by a medical condition or not. I've certainly gotten comfortable, and I think we've gotten used to having no commute, and, you know, being able to empty the dishwasher on lunchbreaks. So, it certainly has its perks, even though, I think we all probably miss our co-workers to varying extents.

DK: How do you respond when an employer says to you, “What's a good candidate, how should I go about rethinking these jobs. I did this on an emergency basis to let people work from home, but I don't know if I want to do it full time.”

KH: It certainly becomes difficult. I think the number one question that I keep hearing from clients is “what do I do when an employee submits a doctor's note, saying they have to continue to work from home, but they are just not a very good performer, and I don't trust that they will be able to work from home effectively.” You have to remember that the employee's performance is not an essential function of the position. Accomodation has to be driven by whether the job can be performed from home and not necessarily whether the employee performs well in the office. If we have a poor performer on-site, you are right, they are probably going to be a poor performer from home, we can't punish them on that basis. Everyone has equal legal rights. So, it’s really a performance management issue and something employers should be careful of when considering how they are going to evaluate off-site employees, making sure that the work is getting done at home. But if work is not getting done at home, that's no different than if work is not getting done on-site. Again, just a performance management issue and something employers should stay aware of.

DK: What are some of the concrete steps that employers should take if they want to rethink these essential job functions?

KH: They absolutely should be looking at all their job descriptions, not so much whether they plan to continue to permit folks to be working from home, but whether they have employees who they really do think need to be on-site. We want to make sure that we are adjusting the job descriptions to reflect that and why. 

For instance, I think a really good example are human resource professionals. These are people who you anticipate need to be available or walking around, connecting with employees or making those types of connections and interactions. I think the question about whether that needs to be done on-site, as for the past year many of them have been working from home, is a very close call. Often, it is a necessary function of the position that you are able to have office hours or something like that. If that's the case, employers need to make sure that's included in the job description, make it clear that an on-site presence is essential and why.

DK: Is this a permanent thing? If I try it out, and I have an employee I think can do their job from home, but I find out it’s really not working out from a performance standpoint, that this person really needs to be in the office to do certain things…

KH: It will depend on whether the work-from-home arrangement is lawfully required in the first place. If we are, for instance, eliminating essential job functions and making a temporary accommodation even though it does pose an undue hardship, we are not required to forever go above and beyond the legal obligations. So, it’s possible, we could pull that back. But if the employee’s essential job functions can be performed at home, that’s unlikely to change over the next months and years to come. Again, it all ties back to the essential jobs and understanding of what those really are.

DK: And what's the best way for an employer to think about that from a procedures standpoint. How should they be evaluating these job functions?

KH: I would hope that my clients are evaluating their essential job functions and their job descriptions in their entirety before they get a request. We can't change the job description so much in response to an accommodation request, although, certainly, that will prompt an evaluation. Certainly, we want to do so in advance with an eye towards what can be performed on-site and what can be performed at home. I would be doing a holistic review of your organization and understanding of who can do what and where.

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Author

Kimberly K. Harding

Partner

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Author

David A. Kaufman

Director of Global Strategies

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