HR Management & Compliance

Dust Off Your Interactive Process Hats as More Remote Workers Are Recalled

With more workers being invited back into the workplace as the COVID-19 pandemic appears to be subsiding, you can expect an uptick in requests for disability accommodations to continue working remotely in some capacity, even when the asserted disability isn’t coronavirus-related. If the past is any indication of the future (and in this case, I think it is), managers and HR pros would be wise to dust off their interactive process hats.

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With the COVID vaccine becoming widely available, I suspect management will sound the “all clear” in the next few months and ask employees to return to the office. I also suspect you’ll see pushback from employees with disabilities who will continue to request “work from home” as a reasonable accommodation. If you have any doubt, consider this:

Last month, the [Equal Employment Opportunity Commission (EEOC)] published its annual statistics for charges of discrimination filed in 2020. The report shows a notable drop (7%) in total charges of discrimination filed in 2020 as compared to 2019. And yet, the number of charges filed on the basis of disability as a protected class actually increased slightly from last year (24,324 charges in 2020, up from 24,238 in 2019). This increase of 86 more charges on the basis of disability in 2020 over 2019 is significant, given the overall decline in total charges filed across the various protected classes.

You also should stand ready to manage requests from employees who don’t wish to be vaccinated because of a sincerely held religious belief and therefore ask to continue remote work arrangements for some time.

Best Practices

Consider each accommodation request on a case-by-case basis, and engage in the interactive process with the employee. Remember, if an employee in a protected class is able to perform the essential job functions with or without a reasonable accommodation, you may satisfy the duty to accommodate by providing any reasonable accommodation, so long as it doesn’t place an undue hardship on your business.

You need not grant the specific accommodation requested by the individual. Before a decision can be made, however, you and the employee must engage in the interactive process.

Working from home may be one of a number of possible reasonable accommodations, depending on the individual circumstances. Other accommodations may include (without limitation):

  • Changing an employee’s work days or hours;
  • Moving her work station or reporting location at her request;
  • Staggering employee schedules; or
  • Implementing other physical or logistical measures within the workplace.

Bottom Line

If you determine continuing a previous remote work arrangement constitutes an undue burden, you must be able to articulate and prove the specific reasons if put to the test. When in doubt, consult legal counsel.

Elitsa V. Yotkova is an Attorney with Stearns Weaver Miller in Miami. You can reach her at eyotkova@stearnsweaver.com.