Disability claims may trip up bosses with hard-line back-to-office policies

Some employers are fatigued and fed up with flexible work-from-home arrangements spurred by the COVID-19 pandemic. They’re chomping at the bit to get everyone back to the office to improve collaboration, motivation and accountability.

But employment lawyers say bosses should be prepared for some workers to challenge callbacks to the cubicle and should not lose sight of their obligations under the Americans with Disabilities Act.

“Employers must understand workers have been out for a long time and have made real changes to their lives. Reintegration will take time and in-office work life may bear little resemblance to what it was back in 2019,” said C. Tyson Gorman, a partner and head of Wyatt, Tarrant & Combs’ labor and employment services team in Louisville.

“This was not a long trip to Europe,” Gorman said. “The pandemic was, and to a certain extent still is, a lengthy mind- and body-altering experience that workers made serious adaptations to deal with. Any expectation of a quick and easy return to the ‘old normal’ ignores that reality.”

Under the ADA, workers with medically documented disabilities, which can include mental health conditions, such as post-traumatic stress disorder, anxiety and depression, have the right to request reasonable accommodations for their disabilities, and employers have a legal responsibility to provide the requested accommodation, unless doing so constitutes an undue hardship.

As such, Gorman said he anticipates many employers will have a “large influx” of ADA accommodation and intermittent Family and Medical Leave Act requests to deal with as office-return requirements increase. “Employers should be ready for this.”

Employers with “flexibility fatigue” should be mindful of policies or denials of requests for remote work “that could put them on the wrong side of the ADA,” Hannah Yoder, an associate at FordHarrison in Tampa, Florida, said in a recent client advisory.

The Equal Employment Opportunity Commission has brought cases against employers related to COVID callbacks.

In December, ISS Facility Services agreed to pay $47,500 to settle a discrimination and retaliation lawsuit the agency brought on behalf of a worker who was fired after seeking an accommodation for a pulmonary condition.

The company asked workers to come back after working remotely four days a week. The employee wanted to work remotely two days a week.

Suing ISS in federal court in Georgia, the EEOC alleged that ISS allowed other employees to continue working at home and that the employee’s accommodation would not cause undue hardship for the company.

In addition to paying the settlement, the consent decree required ISS to better train its employees on ADA and allowed the EEOC to monitor the company’s future requests for ADA accommodation.

Although an employer has the legal right to deny accommodations that would be unduly burdensome, making a hasty and uninformed decision isn’t smart, say employment lawyers.

Employers must engage in an “interactive” process to determine the precise limitations caused by a disability, as well as consider reasonable accommodations, Kristen Gallagher, chair of the employment and labor law practice group at McDonald Carano in Las Vegas, said in a client advisory. ”Employers must evaluate requests for accommodation on a case-by-case basis.”

Yoder tells clients that employers who permitted remote work previously, “and indeed benefited from it,” should be prepared to explain their decision to withdraw or deny such arrangements going forward.

“These employers should also be prepared for a fact-specific examination of a job’s essential functions. Clearly, blanket assumptions about the ‘essentialness’ of in-person work will be harder to depend on,” Yoder said.

In a client advisory last year, Gorman said it may be necessary for employers to obtain information from the employee’s medical provider as to the need for accommodation and the expected duration.

Ultimately, the employee who has received an accommodation will still have to be able to perform essential functions of the job, he noted. Office jobs can likely be performed remotely but “hands-on” jobs may not be.

Employers don’t have to grant a remote-work request “if it means eliminating essential job functions,” Yoder said.

Nor do employers have to accommodate requests under the ADA that are unrelated to a qualified disability, such as the unavailability of child care and the health issues of others at home, Gallagher told clients.

However, she said employers “should refrain from prejudging” requests for accommodations “until they have determined whether the individual is qualified and engaged in the interactive process because each situation must be evaluated on a case-by-case basis.”

Tensions over return-to-the-office policies have become a huge headache for employers. For example, earlier this year more than 2,000 Disney workers signed a petition asking CEO Bob Iger to reconsider a four-day in-office requirement. Dozens of Starbucks corporate employees also petitioned the company to permit remote work.

Even so, Gorman noted that the overwhelming majority of employees have no right to work remotely unless disabled and in need of accommodation under the ADA, he said.

“Pre-pandemic, the law was pretty good for employers. Even disabled employees could be required to appear and work at the office,” Gorman said.

Related: Are disability benefits actually enough to live on?

“One of the things we will be watching in the coming months/years is whether this rule shifts post-pandemic, particularly for employees with serious disabling conditions that proved during the pandemic that they could complete their work as well or better at home than in the office and whose conditions are better accommodated by working from home,” he said.