HR professionals are fielding more accommodation requests than ever. One of the more popular accommodations requested? Remote work. HR leaders say remote work is currently the most requested accommodation, and it’s requested for a wide array of conditions, including a rising tide of mental health conditions.
It’s not difficult to pinpoint the event that gave rise to the influx of remote work accommodation requests. The COVID-19 pandemic sparked a sweeping, near-overnight transition to remote work. It proved that many jobs could be done—and done effectively, in many cases—outside the office with the right technologies in place.
Four years later, remote work remains a popular work arrangement. Some companies, however, have called workers back to the office. Those organizations now face difficult questions when it comes to remote work and accommodations. In the post-COVID world, when is remote work a reasonable accommodation? What makes in-person work an essential part of a position? What conditions make remote work a reasonable accommodation?
In the article below, we share important tips to help you answer these questions and your other remote work-accommodation queries.
The Important Differences Between Telework and Remote Work
Before we dive into our tips, let’s define our terms. Telework and remote work are two different kinds of work arrangements, though they share many of the same traits.
What is Telework?
According to Indeed, employees who telecommute work from an off-site location — their home, a co-working space, a branch office — but it’s typical that these employees are required to report to a physical location frequently.
What is Remote Work?
Remote employees differ from teleworking employees in that they can work from anywhere. Unlike their teleworking counterparts, they are not usually required to maintain any on-site presence.
In many sectors, remote work is an increasingly common arrangement. According to Pew Research Center, about 14% of employed adults work from home all the time. In industries like higher education, remote work isn’t quite status quo, but it’s an attractive benefit. According to a 2021 EDUCAUSE survey, more than half of higher ed workers said they want more remote work options.
It’s easy to see why the trend is catching on: in many scenarios, remote work benefits employees and employers alike. Employees enjoy increased flexibility and autonomy. Meanwhile, employers not only wield a powerful recruiting and retention tool, but they also are saving about $10,000 per employee annually.
Despite these benefits, many employers have asked workers who went remote during the pandemic to return to their cubicles — for at least a few days each week. But data shows that these return-to-office mandates have slowed and that the numbers of remote-working employees have held steady in the last year.
This doesn’t mean that work arrangement issues have completely settled, however. Employers with fully or mostly in-person policies are fielding work-from-home accommodation requests connected to a disability or other condition.
Some employers are facing legal backlash for saying no to such requests. In fact, workers are filing more charges of disability discrimination with agencies like the U.S. Equal Employment Opportunity Commission (EEOC), a trend experts say is partially driven by the denial of remote work accommodations.
One such charge ended in a $25,000 settlement paid out to an employee who wanted to telework one day per week as an accommodation for her anxiety and depression. Her employer denied her request, even though the worker’s position could be performed off site and it allowed other employees to telework.
Remote Work as an Accommodation Under the ADA
Because remote work is a top accommodation, it’s important to know how to evaluate a request for it. HR managers should follow the EEOC’s guidelines on the Americans with Disabilities Act (ADA), which requires employers to provide reasonable accommodations to workers with disabilities.
Does the ADA Require Employers to Offer Remote Work?
Employers should remember that the ADA does not require employers to offer remote work to all employees. If an organization allows remote work, however, it must give employees with disabilities “equal opportunity to participate” in that benefit, EEOC says.
That said, working from home may still be a reasonable accommodation at organizations that do not typically offer remote work.
“Changing the location where work is performed may fall under the ADA’s reasonable accommodation requirement of modifying workplace policies, even if the employer does not allow other employees to telework,” the EEOC says.
Still, employers are not obligated to choose an employee’s preferred accommodation. They may offer alternate accommodations that are effective. But, as EEOC notes in guidance, sometimes remote work is the only option.
Key takeaway: The ADA doesn’t require employers to offer remote work, but it may be a reasonable accommodation, even at organizations that don’t offer a telework program.
How Should Employers Determine Whether Remote Work is a Reasonable Accommodation?
Next, let’s discuss how an employer should determine whether someone needs to work at home as an accommodation. When an employee requests to work at home because of a medical condition, their request should kick off what’s called the interactive process. During this series of communications with the employee, the employer should determine:
- Whether the employee’s condition rises to the level of disability under the ADA.
- Why the disability might necessitate working from home.
- Other types of accommodations that would allow the person to remain working in the workplace.
It’s worth noting that the employer can ask for information regarding the employee’s medical condition to help determine whether the employee is dealing with a disability.
According to the Job Accommodation Network (JAN), conditions that could necessitate a remote work accommodation under the ADA include:
- Difficulty commuting
- Limited access to accessible parking
- Limited worksite or workstation accessibility
- Lack of privacy to manage personal or medical needs
- Work environment issues
- Exposure to viruses and bacteria
- Rigid work schedules
- Workplace distractions affecting concentration
Key takeaway: When an employee requests remote work due to a medical condition, employers should use the interactive process to determine whether the employee has an ADA-defined disability that necessitates remote work.
What Makes Remote Work a Reasonable Accommodation?
Now for a more complicated question. In determining whether remote work is a reasonable accommodation for an employee, employers must consider whether in-person work is an essential job duty. If it is, remote work is not a feasible accommodation. But if the employee can successfully perform the job off-site, remote work is a possibility.
The pandemic clearly demonstrated that many jobs can be performed away from the office. But just because work was done remotely during the pandemic doesn’t necessarily mean that in-person attendance is no longer an essential function.
Consider a recent court case dealing with this topic. In this case, a school principal wanted to work from home for six months due to her asthma, her anxiety, and her depression. The principal reasoned that being in person wasn’t an essential function of her job — she completed her duties as principal from her home during the earliest years of the pandemic. The school denied her request, saying that the essential functions of an elementary school principal required her to be on site.
The principal filed suit, and the case came before a district court. The court found that physical presence was indeed an essential function of the principal’s job, noting that temporary modifications of essential functions made in response to the pandemic “did not establish that the essential functions of a principal had been permanently changed.” Because of this, the court said, remote work was not a reasonable accommodation.
This logic does not apply to every situation, of course. To determine whether physical presence is an essential function of a job, employers should answer the following questions:
- What are the essential functions of this employee’s job?
- Can some or all of these functions be performed at home?
- Does this employee’s position rely on face-to-face interaction?
- Must this employee interact in person with colleagues, clients, or customers?
- Can this employee be effectively supervised while working from home?
- Can the equipment or tools needed by this employee be replicated at home?
- Does this person need immediate access to hard documents or other information only available in the physical workplace?
The EEOC notes that employers should not deny a remote work accommodation “solely because a job involves some contact and coordination with other employees.” In that situation, employers should consider a hybrid approach.
Key takeaway: Employers must determine whether an employee can carry out the essential functions of their job off site.
Remote Work as an Accommodation Under the PWFA
The ADA isn’t the only federal statute providing accommodations for workers. As of June 2023, when the Pregnant Workers Fairness Act (PWFA) took effect, workers with pregnancy-related conditions can also seek accommodations, including the accommodation of remote work. In fact, new guidance on the PWFA specifically highlighted telework as an accommodation for pregnancy-related conditions.
The PWFA and the ADA are often grouped together as accommodation-providing laws. While the two statutes provide many of the same accommodations, their processes and requirements are quite different. Key differences include:
- A lower accommodation threshold: For a pregnant worker to qualify for an accommodation under the ADA, they need to show they have a condition that meets the law’s definition of disability. But under the PWFA,employers must provide accommodations for “pregnancy-related conditions,” a wide-ranging definition that includes: current, past, and potential pregnancy; lactation; menstruation; and more.
- Less-essential job functions: The ADA requires individuals with disabilities to perform the essential functions of a job “with or without reasonable accommodation.” Under the PWFA, however, an employee or applicant can be qualified for a role even if they cannot perform one or more essential functions of the job. In fact, employers must consider eliminating one or more essential functions for up to 40 weeks, and possibly longer, during an employee’s pregnancy, unless that creates an undue hardship — an accommodation that poses significant difficulty or expense.
- Simple and swift interactive process: Employer-employee communications regarding PWFA accommodations should be speedy and simple. Employers may only request documentation in certain situations.
Employers must take these differences into account when evaluating a request for remote work from an employee with a pregnancy-related condition. They must also remember that the PWFA prohibits employers from requiring employees “to take paid or unpaid leave if another reasonable accommodation can be provided.”
This means that employers may only require an employee to take leave as a last resort. If some of a worker’s essential functions can be carried out off site, employers may need to offer remote work as an accommodation to avoid the possibility of unpaid leave.
Key takeaway: Just like the ADA, the PWFA says that remote work is a possible accommodation. The two laws differ in their approach to determining when remote work is appropriate, however, especially when it comes to evaluating the essential functions of a job.
Use Technology to Improve Equity, Efficiency, and Compliance in your Interactive Process
It’s no simple process to determine whether a request for remote work is a reasonable accommodation. Considering the flood of such requests, it’s important to equip your organization with an evaluation process that’s fair, equitable, and repeatable.
Modern accommodation technology makes sure your team handles every accommodation request accurately — no matter how complex the request is. Platforms like AbsenceSoft will not only ensure success with each individual case but will also provide data to make sure similarly situated employees receive similar accommodations.
Accommodation management software will also keep your team efficient and compliant. Software will keep detailed case notes for every accommodation request, saving HR time as requests continue to increase. Most importantly, however, it will position HR to greet every accommodation request with confidence and compassion.
To learn more about how AbsenceSoft can improve your accommodations process, book a demo today.