Is Remote Work A Reasonable Accommodation?

TLDR; Yes. But, it isn’t that simple.?

The Americans with Disabilities Act (applicable to employers with 15 or more employees) (“ADA”) prohibits employers from discriminating against employees and applicants with disabilities and requires employers to provide reasonable accommodations to those with disabilities. The EEOC has identified telework as a reasonable accommodation under the ADA.?

Even so, more and more workers are filing disability-related charges and lawsuits alleging that remote work is a reasonable accommodation for their specific situations. The filings indicate that despite the law and clear guidance from the EEOC, many employers are routinely denying telework requests.?

Following the pandemic and shut-down, many employers implemented return-to-office policies hoping to boost collaboration and productivity. In response, employers have been met with requests for telework as a reasonable accommodation for mental health disorders like anxiety, depression, and post-traumatic stress syndrome. Although confidentiality rules make getting a clear picture difficult, the EEOC? saw a 16% rise between 2021 and 2022 in charges against employers for discriminating against employees with those conditions, the Wall Street Journal reported.

Reported and documented mental illness is at an all-time high, and Covid was a huge contributor. There is a fine line, however, between “I prefer to work from home” and “I need to work from home to manage my anxiety and depression.” For employers, case-by-case decisions and compromise can be difficult when it comes to mental health disabilities because of the limitations on the amount of information that can be shared given the employer’s confidentiality obligations. Employers are stuck between a rock and a hard place because allowing some employees to work remotely to accommodate an invisible illness while requiring others to be in the office can stoke complaints about unequal treatment and harm office morale.?

But, after years of approving most accommodation requests, employers are pushing back; in the first half of 2023, they approved just under 92% of requests — still high, but down from more than 96% in 2021, according to data tracked by Sedgwick, a disability claims manager.?

Nevada saw a charge of discrimination this year when a project manager for a military contractor filed a complaint with the Nevada Equal Rights Commission when a new manager required her to come into the office for meetings after she’d been previously allowed to work remotely to accommodate her anxiety and PTSD. The claimant alleged she had to go back on anti-anxiety medication to handle the situation and was ultimately forced to quit to preserve her mental health. While the company contended it tried to find an accommodation for her, this case illustrates the challenges employers face when they seek to modify their workforce placement.?

The Covid work-from-home mandate imposed at the height of the pandemic leaves employers little room to argue that in-office work is necessary or that telework cannot be accommodated. We certainly cannot put remote work back in the bottle, but whether it is a required reasonable accommodation under the law is a different story entirely. Unless telework is approved across the board, each request should be handled on a case-by-case basis and with the proper analysis and documentation.?

The intersection of employee desires and employer business needs is a delicate balancing act.? Whether you’re an employer needing help managing telework requests or planning on making changes to your remote-work policies or an employee seeking to work from home, we can help make sure you get it right.?

Cheers,?

Jessica?