Wednesday, February 14, 2024

Remote work as a reasonable accommodation

A former UCLA employee has sued the university, claiming that if fired him in retaliation for requesting to continue to work from home after its "work from home" order ended.

According to his complaint, the 23-year employee, who last worked as a mechanic in the physical sciences machine shop, suffers from disabilities that affect his arms and hands. The lawsuit alleges that his supervisor denied his request to continue working from home after Covid work from home orders ended, despite most other employees continuing to work remotely. After the university later laid him off, he sued.

Courts are generally in agreement on two things related to remote work as a reasonable accommodation: 1) regular, in-person work is an essential function of most jobs; and 2) remote work as a reasonable accommodation is a highly fact-specific inquiry.

Indeed, in the recent words of the employer-friendly 5th Circuit Court of Appeals: 

It's often said that 90% of life is showing up. But the right number no doubt varies from job to job. It may be reasonable to work part of the day at home for some jobs—but not for others. The correct answer turns on the nature of the job and the facts of the case.

The prevalence of remote work during the pandemic, however, has to some degree altered this calculus. According to the EEOC:

The period of providing telework because of the COVID-19 pandemic could serve as a trial period that showed whether or not this employee with a disability could satisfactorily perform all essential functions while working remotely.

What does all of this mean for your employees who request remote work as a reasonable accommodation? Even though "90% of life is showing up," you need to worry about the 10% that could justify an accommodation, especially if you have a documented history of that employee or similarly situated employees successfully performing the essential functions of their jobs remotely during the pandemic or otherwise.