Skip to main content

Nixon Peabody LLP

  • People
  • Capabilities
  • Insights
  • About
Trending Topics
    • People
    • Capabilities
    • Insights
    • About
    • Locations
    • Events
    • Careers
    • Alumni
    Practices

    View All

    • Affordable Housing
    • Community Development Finance
    • Corporate & Finance
    • Cybersecurity & Privacy
    • Entertainment & Media
    • Environmental
    • Franchising & Distribution
    • Government Investigations & White Collar Defense
    • Healthcare
    • Intellectual Property
    • International Services
    • Labor, Employment, and Benefits
    • Litigation
    • Private Wealth & Advisory
    • Project Finance
    • Public Finance
    • Real Estate
    • Regulatory & Government Relations
    Industries

    View All

    • Aviation
    • Cannabis
    • Consumer
    • Energy
    • Financial Services
    • Healthcare
    • Higher Education
    • Infrastructure
    • Manufacturing
    • Nonprofit Organizations
    • Real Estate
    • Sports & Stadiums
    • Technology
    Value-Added Services

    View All

    • Alternative Fee Arrangements

      Developing innovative pricing structures and alternative fee agreement models that deliver additional value for our clients.

    • Continuing Education

      Advancing professional knowledge and offering credits for attorneys, staff and other professionals.

    • Crisis Advisory

      Helping clients respond correctly when a crisis occurs.

    • DEI Strategic Services

      Providing our clients with legal, strategic, and practical advice to make transformational changes in their organizations.

    • eDiscovery

      Leveraging law and technology to deliver sound solutions.

    • Environmental, Social, and Governance (ESG)

      We help clients create positive return on investments in people, products, and the planet.

    • Global Services

      Delivering seamless service through partnerships across the globe.

    • Innovation

      Leveraging leading-edge technology to guide change and create seamless, collaborative experiences for clients and attorneys.

    • IPED

      Industry-leading conferences focused on affordable housing, tax credits, and more.

    • Legal Project Management

      Providing actionable information to support strategic decision-making.

    • Legally Green

      Teaming with clients to advance sustainable projects, mitigate the effects of climate change, and protect our planet.

    • Nixon Peabody Trust Company

      Offering a range of investment management and fiduciary services.

    • NP Capital Connector

      Bringing together companies and investors for tomorrow’s new deals.

    • NP Second Opinion

      Offering fresh insights on cases that are delayed, over budget, or off-target from the desired resolution.

    • NP Trial

      Courtroom-ready lawyers who can resolve disputes early on clients’ terms or prevail at trial before a judge or jury.

    • Social Impact

      Creating positive impact in our communities through increasing equity, access, and opportunity.

    • Women in Dealmaking

      We provide strategic counsel on complex corporate transactions and unite dynamic women in the dealmaking arena.

    1. Home
    2. Insights
    3. Videos
    4. Work from home accommodations in the post COVID-19 remote workforce

      Videos

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

    April 6, 2021

    LinkedInX (Twitter)EmailCopy URL

    By Kimberly Harding and David Kaufman

    Kimberly Harding discusses reasonable accommodation requests to continue work-from-home arrangements in the post-COVID-19 workforce.

    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.

    Practices

    Labor, Employment & Benefits

    Insights And Happenings

    • Alert

      DEI and corporate governance: Increasing board diversity

      Oct 11, 2022
    • Press Release

      Experienced litigator joins Nixon Peabody Labor and Employment practice

      Sep 8, 2022
    • Press Release

      Nixon Peabody recognized for ‘Excellence in Inclusion’ by nonprofit ChIPs

      Sep 8, 2022
    The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.

    Subscribe to stay informed of the latest legal news, alerts, and business trends.Subscribe

    • People
    • Capabilities
    • Insights
    • About
    • Locations
    • Events
    • Careers
    • Alumni
    • Cookie Preferences
    • Privacy Policy
    • Terms of Use
    • Accessibility Statement
    • Statement of Client Rights
    • Purchase Order Terms & Conditions
    • Nixon Peabody International LLC
    • PAL
    © 2025 Nixon Peabody. All rights reserved