Tuesday, April 14, 2020

Coronavirus Update 4-14-2020: Telecommuting as a reasonable accommodation

Telecommuting has become the coronavirus norm. The CDC recommends that employees who can work from home do so, and state Stay at Home orders are requiring telework whenever possible.

The larger questions, however, are whether COVID-19 will change our national outlook on the viability of telework, or when his crisis ends will businesses return to their pre-coronavirus telework hostility?

I hope it’s the former but I fear it’s the latter. And if it’s the latter, Tchankpa v. Ascena Retail Group, which the 6th Circuit decided in the midst of the growing coronavirus outbreak and just five days before the WHO declared a viral pandemic, gives us some insight into the future issues.

Kassi Tchankpa, a database administrator for Ascena, seriously injured his shoulder while transporting laptops to work. The injury limited his ability to bathe himself, cook, wash dishes, open the refrigerator, or drive normally. Yet, with a variety of accommodations from Ascena (such as arriving late or leaving early as needed to attend medical appointments and flexible scheduling), Tchankpa was able to work in the office for the first 10 months after his injury.

When he asked to work to his home three days per week as further accommodation (something he argued Ascena allowed other employees to do), the company balked. Tchankpa’s supervisor made clear that Tchankpa needed medical documentation to support his request for regular work from home. Tchankpa’s doctor, however, never provided that documentation, and instead advised the company that Tchankpa could continue to work from the office as long as he took frequent breaks for his shoulder. Ascena thus denied the work-from-home accommodation request. As a result, Tchankpa quit and sued for disability discrimination.

The lack of documentation supporting Tchankpa’s telework accommodation request doomed his claim:

Employers are entitled to medical documentation confirming the employee’s disability and need for accommodation. And Ascena invoked that right in early 2013. Yet Ascena did not receive documents discussing Tchankpa’s medical restrictions until October 2013. Far from showing a necessary accommodation, Dr. Stacy’s report stated that Tchankpa could work eight hours per day, five days per week. Without medical documentation showing that Tchankpa’s disability required work from home, Ascena had no duty to grant Tchankpa’s request. After all, we presume on-site attendance is an essential job requirement.

Thus, an employee seeking telework as a reasonable accommodation must provide a requesting employer documentation as to the medical necessity of that accommodation. This is true of any reasonable accommodation. Unless the need for a reasonable accommodation is painfully obvious, an employer never has to take an employee’s word for it, and should always request medical documentation to support that need.

Which has nothing whatsoever to do with telework during this pandemic emergency. Everyone who can be teleworking should be teleworking, period, no questions asked.

The bigger question is what happens after we all return to our physical places of work. Currenly, about half of employed adults are working from home. According to the Bureau of Labor Statistics, before coronavirus only 19.5% of the workforce performed some paid work at home. We should expect the numbers to meet somewhere in the middle after we are all allowed to safely return to work. Indeed, the Brookings Institute predicts that telecommuting will continue long after the pandemic ends.

While working from home hasn’t been perfect over the past month, it’s still been work. With email, remote access, cloud storage, and Zoom, I’ve been able (more or less) to accomplish everything I’ve needed to. Still, I miss my co-workers, and can’t envision doing this from-home thing on a permanent full-time basis. But I can envision it a day or two a week.

So here are my questions on the heels of the Tchankpa court’s declaration that “on-site attendance is an essential job requirement.” Is it still? If employees are currently working productively from home, will an employer still be able to make a future claim that on-site attendance is essential to those employees’ jobs? Or will remote work finally take its rightful place alongside in-person work as accepted and acceptable?

While telecommuting has been the exception by a vast number, my hope is that the wall that has separated exception from rule will evaporate, as this pandemic has shown that we can productively work without being at work.

* Photo by Charles Deluvio on Unsplash