Since the start of the coronavirus pandemic, many employees have gone from working at their regular offices to working at home.
The general expectation was that the arrangement would be short-term.
In some cases, organizations have determined that employees working from home has not negatively affected job performance and can remain permanent if the employee and employer agree.
Many companies, however, are asking how they can legally get their employees back into the workplace after finding that the year-long work from home arrangement has produced mediocre results.
Employers should review job requirements and job descriptions to determine the essential functions of each position, including whether on-site attendance remains an essential job function.
In an ideal scenario, these essential functions are clearly articulated in the job description, which should be updated post-pandemic.
Once the employer determines the essential job functions, the worker is only qualified to perform that job if she/he can perform all of the essential functions of the position with or without reasonable accommodation, according to the Americans with Disabilities Act.
This means that an employee who cannot return to work due to a medical condition must be provided reasonable accommodation so that the individual can perform those functions unless doing so would cause undue hardship to the company.
The ADA does not require that the employer remove the essential function, such as on-site attendance, as an accommodation.
A person with an underlying health condition that makes that person susceptible to complications from COVID-19 is not automatically entitled to work from home as an accommodation. It will depend on whether on-site attendance is an essential job function.
For example, a reader shared an email she received from a Richmond-area school system after she complained that her son’s teachers had not returned to the classroom. The school responded that the teachers were receiving a reasonable accommodation to work virtually.
On-site attendance for a teacher whose students are in the classroom would be, in most cases, an essential job function.
An employee whose essential job function is on-site attendance, but due to a disability cannot perform the job on-site despite accommodation efforts, is no longer qualified for the job, and can be terminated or transferred to a vacant and open position if one is available.
The employee could be granted unpaid leave as a reasonable accommodation, so long as the medical documentation provides a return to work date and the leave does not create an undue hardship.
Reasonable accommodations need only be provided for the employee’s own medical condition, not those of family members. An employee who cannot return to work because of a family member’s medical condition does not trigger the ADA.
The employee might have the right to unpaid leave under the Family Medical Leave Act, if the employee’s spouse, child or parent requires care because of a “serious health condition” or if the employee has a serious health condition and cannot perform the essential job functions.
The employee would, in this scenario, be entitled to unpaid leave, not an accommodation to work virtually.
Employers should always show compassion and empathy to all employees, including those with unique circumstances during the pandemic.
They should also assess whether on-site attendance is truly an essential job function, or whether accommodations can be made so that the job can be fully and successfully performed away from the workplace and/or if a hybrid model can be made available.
In addition, they should be consistent and comply with the law.
Simply put, employers are not legally required to continue with the work from home arrangement indefinitely if one of the job’s essential functions is on-site attendance.
Too many employers wrongly assume that if an employee has a medical condition that it must provide whatever accommodations the employee requests even if essential job functions are removed. The ADA requires that the employer provide reasonable accommodations so that the employee can perform the job’s essential functions.
The ADA is very individualized and not one size fits all.
When an employee asks for an accommodation, always ask, “How can I help you,” and then go through every step in the ADA to engage in the interactive process and find creative solutions to help the individual perform the essential job functions.
Employers can receive free advice on creative accommodation solutions through the Job Accommodation Network at jan.org.
Of course, employers must always offer a safe work environment for their employees and can rely upon the standards published by the Virginia Department of Labor and Industry to do so during the pandemic.