8923 / Are employers required to permit remote work arrangements for employees who have requested “reasonable accommodation” due to COVID-19?

The direct monetary costs to the employer are relevant (considering the size of the employer and the number of employees who may request the remote work accommodation). However, the EEOC provides that a number of additional factors are relevant in determining whether the requested accommodation must be granted, in addition to the financial cost to the employer. Employers can also consider whether the accommodation would: (1) decrease workplace efficiency, (2) infringe on other employees’ rights, (3) compromise workplace safety, (4) require other employees to take on more than their fair share of hazardous work or (5) conflict with another regulation or law.¹

A Tenth Circuit case decided in 2021 held that a work-from-home or modified schedule is not a “reasonable” accommodation if the employee is unable to perform essential job functions as a result of the remote work arrangement.² The case illustrates the general rule that reasonable accommodation is only required if it doesn’t present an undue hardship for the employer. Employers today should ensure that the essential job functions required of each role are well-documented--remembering that it is also important to evaluate whether the accommodation would truly prevent the employee from performing those job functions.

In November 2022, the Eighth Circuit held that that an employee may be able to prove that remote work is a reasonable accommodation by showing that the employee had been successfully working remotely. In this case, the employee was permitted to work remotely two days a week. He requested additional remote workdays when his multiple sclerosis flared up. The employer denied the request, stating that the employee was required to be present in the office to supervise underperforming employees as part of the essential job functions. The court, however, found that the employee may have been able to prove that remote work was a reasonable accommodation because the employee had been successfully supervising those employees on a remote basis. In the words of the court, “by allowing [the employee] to consistently work remotely aside from his medical condition, [the employer] implicitly demonstrated a belief that he could perform his essential job functions without being in the office all the time.”³

1. https://www.eeoc.gov/laws/guidance/section-12-religious-discrimination (last accessed Sept. 30, 2024).