Since the pandemic, reports of adults experiencing mental health concerns, conditions and diagnoses are on the rise. Now that many employers want employees to report to the workplace, employers are being faced with the requests for a hybrid schedule or to work remotely as an accommodation for a variety of mental conditions, such as depression, stress and anxiety. Employers are now wondering how to respond to these requests.
“In certain situations, remote work and hybrid schedules may be a reasonable accommodation under The Americans with Disabilities Act (ADA),” says Susan Rodgers, Partner, Employment & Labor Practice Group Leader, and General Counsel at Buckingham, Doolittle & Burroughs, LLC. “This is a complicated issue, and employers need to be prepared to appropriately evaluate whether they are required to provide the requested accommodations.”
Smart Business spoke with Rodgers about the factors that determine whether employers are required to provide remote option arrangements and the risks surrounding the decision.
What determines if hybrid or remote should be provided?
Under the ADA, employers are required to provide reasonable accommodation to qualified applicants or employees that would allow them to perform the essential functions of the job, unless it would cause the employer undue hardship. While an employee with a disability may request an accommodation — such as to start or continue to work remotely — this request does not mean the employer is required to provide the accommodation.
Employers should review job descriptions, work-from-home policies, and their handbook to see if they reflect that being present in the workplace is a necessary part of the job. Personnel documents should be consistent with the business model the employer believes is most efficient and effective for their operations.
Employers also need to look at their precedent. Although the pandemic arrangement is precedent, an employer may have a variety of business reasons as to why being back in the office is essential under current conditions.
Additionally, an employer needs to consider whether they are allowing others performing the same position to work from home or have a hybrid schedule. This precedent directly impacts an employer’s assessment of whether where the work is performed matters to the position.
How should employers handle these requests?
When a request is made, the employer must engage in the interactive process with the employee to obtain relevant information to conduct an individualized assessment of the request. Information regarding whether a reported mental condition substantially limits one or more major life activity and meets the definition of a disability under the ADA should be obtained from the employee’s health care provider. Additionally, the information should address work restrictions and the medical necessity for an accommodation.
If the information supports that the employee is disabled, it must be determined whether the employee can perform the essential duties of the position with a remote arrangement. Being in person may be required, and as such, remote work is not a reasonable accommodation. In some cases, it might be a reasonable accommodation to work from home, but there may be other accommodations that would effectively address the situation.
What risks might employers face with such requests?
What’s most important is that employers engage in the interactive process in good faith and reach decisions regarding accommodation based on relevant information and the actual job duties and responsibilities. Failure to do so, could expose an employer to a claim for failure to accommodate under the ADA or disability discrimination. An employer faces the risk of charges being filed with the Equal Employment Opportunity Commission and the Ohio Civil Rights Commission as well as litigation seeking back pay, front pay, compensatory damage, punitive damages and attorney fees. That’s why it’s important to work with an employment attorney who understands the nuances of the ADA and the many unique factors that must be evaluated with each request.
