As more businesses start to reopen, the COVID-19 pandemic will have long-term effects on the work environment beyond temperature checks and social distancing protocols. One impact is that it may be harder for employers to justify denying a disabled employee’s request for an accommodation to work from home. Whereas employers previously may have been reluctant to allow employees to work from home, Governor Newson’s March 19, 2020 Stay at Home Order and local county orders have forced employers to adapt quickly to the new normal of telecommuting. With this change comes a new perspective on whether employees can perform their essential job duties from home.
Under the California Fair Employment and Housing Act (“FEHA”), the Americans with Disabilities Act (“ADA”), and Section 504 of the Rehabilitation Act of 1973, an employer is required to engage in the disability interactive process when an employee or applicant requests an accommodation for a disability or when the employer becomes aware of a need for accommodation. The FEHA and ADA make it unlawful for an employer to fail to make a reasonable accommodation for the known physical or mental disability. The exception to this requirement is if the accommodation would create undue hardship for the operation of the employer’s business or would impose a significant risk of harm to the health and safety of others.
Accommodations to Work from Home Prior to the COVID-19 Pandemic
Even before the COVID-19 pandemic, the FEHA regulations expressly provided a reasonable accommodation could include permitting an employee to work from home. (Cal. Code Regs. tit. 2, § 11065(p)(L).) The Ninth Circuit has also recognized that “on-site presence is not required for all jobs” because some employees are able to adequately execute all work-related tasks from home. (Samper v. Providence St. Vincent Med. Ctr., 675 F.3d 1233, 1239 (9th Cir. 2012).)
Workplaces Have Made Telecommuting Work
Based on the Stay at Home Order, many employees have now been working from home for over 12 weeks. This has provided both employers and employees with an opportunity to try telecommuting on a long-term and workplace-wide basis.
Moving forward, when a disabled employee make an accommodation request to work from home, it may be more difficult for an employer to deny the request based on some justification that the employee needs to be physically in the workplace. Some employees will be able to point out that they were able to telecommute and accomplish their essential job duties during the COVID-19 pandemic. This could undercut arguments that allowing a disabled employee to telecommute is an undue hardship.
Courts will consider past instances of telecommuting to determine whether an employee can be reasonably accommodated to work from home. In the unpublished case from California, Henry v. Pro*Act, LLC, an employer refused to allow an employee to work from home after the employee was recovering from surgery. In determining that the employer could have made a reasonable accommodation available, the court stated it was important that the employer had previously allowed the employee to work from home after prior surgeries. (Henry v. Pro*Act, LLC, 2014 WL 12567144, at *8 (C.D. Cal. Dec. 30, 2014).)
In another unpublished federal case from California, Rezvan v. Philips Elecs. N. Am. Corp., an employee made repeated requests to work from home when she suffered severe pain or infection related to her rheumatoid arthritis. Her employer repeatedly refused the requests and claimed the employee’s job as a Contract Manager required regular onsite attendance. After the employee filed a lawsuit alleging refusal to accommodate a disability, the employer presented evidence that the employee’s absences negatively impacted other employees. However, the court took note of evidence that the employer had previously allowed another Contract Manager to work remotely full-time for ten months without any issues. The court found that there was a genuine dispute regarding whether regular onsite attendance was an essential duty of the Contract Manager position. (Rezvan v. Philips Elecs. N. Am. Corp, 2016 WL 8193160, at *4 (N.D. Cal. Dec. 15, 2016).)
Boost of Technology
During the Stay at Home Order, many workplaces began utilizing their existing technologies on a more frequent basis and adding new technologies to ease the transition to working from home. Video conferences and conference call phone lines have replaced in-person meetings and trainings. An employee’s ability to remote into his or her work computer has allowed access to work as if the employee never left his or her desk. The ongoing shift to paperless work environments has allowed employees to access more documents electronically, thereby reducing the need to visit the printer and copying room.
With these technological improvements comes an ease in ability to telecommute. The U.S. Court of Appeals for the 7th Circuit foresaw the impact technology would have on accommodation requests to work from home 25 years ago. In Vande Zande v. State of Wis. Dep’t of Admin., the 7th Circuit determined that the employer was not required to allow a disabled employee to work from home where their productivity inevitably would be reduced. However, the Court also predicted: “This will no doubt change as communications technology advances…”(Vande Zande v. State of Wis. Dep’t of Admin., 44 F.3d 538, 544 (7th Cir. 1995).)
Learning to Work Together While Apart
On a coworker-to-coworker level, employees have learned how to communicate and facilitate work projects with each other while working apart. While technology cannot fully replace the comradery of face-to-face interactions with coworkers, people will have a better understanding of how they can continue to work together effectively from different locations. Disability interactive process accommodations to work from home will be less of a hardship when telecommuting fits in to the normal workplace culture.
Flexibility is Key
Even after people are allowed to return to the workplace, employers are encouraged to continue allowing employees to work from home. For example, the May 29, 2020 County of San Diego Public Health Order states that all essential businesses and reopened businesses shall make every effort to use telecommuting for their workforces. As some employees begin to return to work, other employees such as those who are considered high-risk populations for COVID-19 reasons, may request to continue to work from home.
When engaging in the interactive process with disabled employees who request an accommodation to work from home, employers should carefully analyze whether or not telecommuting imposes an undue hardship on the employer’s operations. While some employees perform duties that necessitate presence in the workplace (for example, public safety employees, water treatment operators, and notaries), other employees who have been telecommuting during the COVID-19 pandemic may have already demonstrated their abilities to perform essential job duties from home.