As the COVID-19 outbreak begins to subside, many employers are preparing to call employees back to the workplace. What’s the best way to go about it? And can you now refuse to let employees work from home as a reasonable accommodation under the Americans with Disabilities Act (ADA) even though they may have been teleworking for upwards of an entire year?
Telework Set-Ups ‘Weren’t Perfect’
Many employers turned to telework during the COVID-19 pandemic. Often they will tell you the arrangements “weren’t perfect” but were necessary to survive the unprecedented circumstances.
My clients often changed (or were forced to alter) the nature or extent of the duties performed by teleworking employees. They simply couldn’t perform certain tasks from home.
In addition, the pandemic itself eliminated certain job duties. For example, under normal circumstances, attendance in the workplace may have been considered an essential function so an employee could supervise direct reports or participate in significant staff meetings. During the outbreak, many of those duties went away.
5 Steps to Get Back to Normal
Give employees advance notice about termination of teleworking arrangements. Being summoned back to the workplace can have a tremendous impact on your employees, who have likely adapted their own altered schedules and routines during the pandemic. Provide as much advance notice as possible so they’ll know when they are expected to return.
Notify them about reinstatement of any essential functions that may have lapsed. This is key. If you have, let’s say, relaxed things a bit during the pandemic, whether intentionally or not, you should address the matter directly and reset expectations. If possible, identify the specific duties that were altered or not required during the past year and provide notice they will be reinstated effective with the recall to the workplace.
Educate employees about COVID-19 protective measures in your workplace. If your employees have been working from home, the concept of wearing a mask around the office isn’t something they are accustomed to (yet). To the extent you have policies for mask wearing, social distancing, vaccinations, or other protective measures, be sure to provide notice and information before your workforce returns. Consider providing remote training about the policies.
Tell people with concerns over returning to contact HR immediately. The earlier you can have the conversations, the better. If possible, designate a particular contact person to handle the talks so you can ensure consistent messaging and responses.
Be prepared to distinguish between two general categories of concern: (1) general fear of COVID-19 and (2) worries implicating underlying physical or mental impairments, which the virus-related circumstances may exacerbate and place the employee at risk. The former typically isn’t grounds to refuse to return to the worksite. The latter may require interactive discussions and considerations of potential accommodations under the ADA.
If necessary, engage in interactive process required by ADA. To the extent an employee’s worries about returning to the workplace implicate mental or physical impairments, you should engage in the ADA interactive process. Again, it’s best to have the conversations early. They can occur by phone before the return-to-work date. The purpose is to obtain information about an employee’s impairment, including its duration and impact on the performance of essential functions.
To the extent the job duties have been relaxed or paused during the pandemic, the interactive process is a good chance to discuss your expectations about the return to the worksite, particularly regarding any reinstated duties that can’t be performed (effectively) from home. Employees must actively participate in the discussion, and potential accommodations should be addressed. Be sure to document the talks.
Teleworking as reasonable accommodation
Those of us tasked with administering the Families First Coronavirus Response Act (FFCRA) are familiar with the Equal Employment Opportunity Commission’s (EEOC) guidance, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and other EEO Laws.” The guidelines, which appear in a question-and-answer format, have been updated periodically during the pandemic.
In the guidance, the EEOC states when you recall employees to the worksite after a period of teleworking caused by the COVID-19 crisis, you aren’t automatically required to let them continue to work from home as an accommodation for a disability under the ADA:
To the extent that an employer is permitting telework to employees because of COVID-19 and is choosing to excuse an employee from performing one or more essential functions, then a request—after the workplace reopens—to continue telework as a reasonable accommodation does not have to be granted if it requires continuing to excuse the employee from performing an essential function.
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. These are fact-specific determinations. The employer has no obligation under the ADA to refrain from restoring all of an employee’s essential duties at such time as it chooses to restore the prior work arrangement, and then evaluating any requests for continued or new accommodations under the usual ADA rules.
The EEOC’s guidance illustrates the importance of notifying employees about any duties you’re reinstating after a recall to the worksite. The guidelines suggest those of you who decline to continue the teleworking arrangements must be prepared to show (1) there were changes to the essential job functions attributable to the pandemic, and (2) you specifically reinstated the functions when employees were able to return to the worksite.
Courtney Bru is an attorney with McAfee & Taft in Tulsa, Oklahoma. You can reach her at courtney.bru@mcafeetaft.com.