Many employers turned to telework during the pandemic. Many will tell you these arrangements were not perfect, but were necessary to survive unprecedented circumstances. My clients often changed — or were forced to change — the nature or extent of duties performed by teleworking employees during the pandemic. Certain duties simply could not be performed from home. In addition, the pandemic itself eliminated certain duties. For example, while under normal circumstances, attendance in the workplace — to supervise direct reports, participate in significant staff meetings, etc. — may have been considered an essential function of a position, the pandemic eliminated many of these duties.
Many employers are now preparing to call employees back to the workplace. What’s the best way to go about this? And can an employer now refuse to allow employees to work from home as a reasonable accommodation for purposes of the ADA, when those employees may have been teleworking for upwards of an entire year?
Best practices for ending teleworking arrangements
Give employees advance notice of the termination of teleworking arrangements. A recall 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 as to when employees are expected to return to the workplace.
Notify employees regarding the reinstatement of any essential functions that may have lapsed during the pandemic. This is key. If things have…relaxed a bit during the pandemic, whether intentionally or unintentionally, it’s best to address this directly and reset expectations. If possible, specifically identify duties that were not required or were altered during the pandemic, and provide notice that those duties will be reinstated effective as of the recall to the worksite.
Educate employees about protective measures in the workplace that are designed to guard against transmission of the coronavirus. If your employees have been working from home, the concept of wearing a mask around the office is not something they are accustomed to — yet. To the extent that an employer has policies regarding mask wearing, social distancing, vaccinations or other protective measures, be sure to provide notice and information to employees about these policies before they return to the worksite. Consider providing remote training regarding these policies.
Instruct employees with concerns about returning to the workplace to contact human resources immediately. The earlier you can have these conversations, the better. If possible, designate a particular contact person to handle these types of conversations, so as to try to ensure consistent messaging and responses. Be prepared to distinguish between two general categories of concern: (1) general fear of COVID, and (2) concerns implicating underlying physical or mental impairments, which may be exacerbated by COVID-related circumstances or which may place the employee at risk. The former is typically not grounds to refuse to return to the worksite. The latter may require interactive discussions and considerations of potential accommodations under the ADA.
To the extent that an employee’s concerns regarding a recall to the worksite implicate mental or physical impairments, be sure to engage in the interactive process required by the ADA. Again, it’s best to have these conversations early. They can occur by phone before the return-to-work date. The purpose of this process is to obtain information regarding an employee’s impairment, including its duration and its impact on the performance of essential functions. To the extent that essential functions have been relaxed or paused during the pandemic, this is a good time to discuss expectations upon return to the worksite, particularly any reinstated duties that cannot be performed (effectively) from home. Employees must actively participate in this discussion, and the topic of potential accommodations should be addressed. Be sure to document these discussions.
Teleworking as a reasonable accommodation
Those of us tasked with administering the Families First Coronavirus Response Act are familiar with the EEOC’s What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and other EEO Laws guidance. This guidance, which appears in question and answer format, has been updated periodically during the pandemic.
In this guidance, the EEOC states that when an employer recalls its employees to the worksite after a period of teleworking due to the pandemic, it is not required to automatically allow continued teleworking as an accommodation of employees with disabilities under the ADA. According to the EEOC,
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.
This guidance illustrates the importance of notifying employees of any duties that are to be reinstated following a recall to the worksite. This guidance suggests that employers who decline continued teleworking arrangements must be prepared to demonstrate that there were changes to the essential functions of a position attributable to the pandemic, and that the employer specifically reinstated essential functions when employees were able to return to the worksite.