Many employers value at least some amount of in-person work and collaboration. So, what are the options for employers faced with requests from employees asking for exemptions from in-person work policies? What if the reasons given by employees include anxiety due to working in the office or a long commute? Is an employer obligated to allow those employees to work from home indefinitely?
New guidance from the OPM and the EEOC may give employers a roadmap to deny some of those requests for accommodation. The guidance is non-binding and focused on federal agencies and compliance with the Rehabilitation Act of 1973. However, the Americans with Disabilities Act, which is nearly identical to the Rehabilitation Act, is referenced throughout the guidance. Accordingly, the guidance may show how the EEOC will approach enforcement in the private sector.
Here are five key takeaways:
The law does not entitle employees to remote work simply because they prefer it to being in the office.
Remote work is a reasonable accommodation only if it enables a disabled employee to:
- Perform the essential functions of their position
- Enjoy equal benefits and privileges of employment as compared with non-disabled employees
This means that an employee who requests permanent remote work for quality of life or personal reasons is not legally entitled to it under federal law. The employee must have a qualifying disability, and the remote work accommodation must serve one of the two purposes set forth above without imposing an undue hardship on the employer.
Employees are not entitled to their accommodation of choice.
As federal courts have consistently held, an employee with a qualifying disability is entitled to a reasonable accommodation, but not necessarily the accommodation of their choice. For example, a disabled employee with auditory sensitivities may request to work from home for a quieter, more controlled workspace, but a reasonable alternative could be a private office in a less-trafficked part of the building.
Previously granted remote work accommodations may be reevaluated.
An employee with a qualifying disability who was granted the accommodation of working from home is not automatically entitled to the accommodation indefinitely. Rather, a previously granted remote work accommodation may be reevaluated annually and may potentially be replaced with another accommodation if another effective and reasonable alternative exists. The guidance cautions, however, that reevaluations must be done on an individualized basis, and employers should not uniformly rescind all previously granted remote work accommodations.
"Common anxiety" is unlikely to be a sufficient basis for a remote work accommodation.
Since the COVID-19 pandemic, many employees have claimed that working in the office causes anxiety. But the EEOC clearly states that the law "does not create a general right to be free from all discomfort and distress in the workplace." Accordingly, the question is whether the employee can effectively do their job in the office, and unless the anxiety creates a material barrier to the employee's ability to perform the essential duties of their position, a reasonable work accommodation for anxiety may not be required.
Employees often assert that remote work would help them manage their mental health condition or mitigate symptoms. But the law does not require an accommodation under those circumstances-the EEOC specifically states that "possible symptom mitigation" alone is insufficient to establish entitlement to remote work, because employers have no obligation to treat employee disabilities. Rather, employers only have an obligation to provide an accommodation that allows employees to perform the essential functions of their position.
Employers generally do not have a duty to eliminate commuting.
Some employees object to long, stressful commutes and request remote work on that basis. Again, the employee must be disabled, and it is generally the employee's responsibility to arrange their transport to and from work.
Of course, the analysis of any accommodation request depends on the facts and circumstances of each case, and there may be situations where a commuting accommodation would be warranted. For example, a visually impaired employee who struggles to commute after dark could be accommodated by a flexible commuting schedule allowing for an early departure.
Conclusion
The EEOC's guidance serves as a helpful reminder of how employers can handle requests for remote work. Remote work may be a reasonable accommodation in some circumstances, but where an alternative is equally viable, or where in-person duties are essential to the position, an employer may be justified in denying the request after engaging in the interactive process.
If your organization has any questions about handling accommodation requests for remote work, please contact the authors of this article or any member of Venable's Labor and Employment Group.