On Sept. 7, it appeared: the U.S. Equal Employment Opportunity Commission's first lawsuit alleging an employer violated the Americans with Disabilities Act by requiring an employee to work in person, despite a company policy allowing many to work from home due to COVID-19.
The lawsuit laid out the circumstances of the accusations. A woman employed at a workplace experience and facility management company had been working remotely four days per week since March 2020. That summer, the facility re-opened and the worker asked for an accommodation that would allow her to work remotely twice per week and take frequent breaks while working on site. The accommodation would allow her to deal with a pulmonary condition that caused breathing difficulty and placed her at greater risk of contracting the coronavirus, she said.
The company denied her request, even though it permitted other employees working the woman's same position to work from home, EEOC said. The company fired her, and the worker later filed suit.
Many employers are now navigating resumed in-office operations, a hybrid setup or a more permanent remote setting. As they adjust, management-side attorneys recommend employers stay on top of potential discrimination issues, just like the one alleged in EEOC's complaint. These issues will likely span the gamut of workplace discrimination topics, from accommodation to harassment.
Trouble with accommodations
As employers consider the discrimination claims remote work may create, they can start with the area that attorneys said generates the most potential liability: accommodations.
Employers restoring on-site operations will likely encounter workers asking to continue to work from home. When they field such requests, they need to be listening for some version of a key phrase: "because of my condition."
This phrase starts something called the interactive process — the back-and-forth that goes on between employer and employee when a worker requests an accommodation for a disability, according to David K. Fram, the director of ADA Services for the National Employment Law Institute.
It's important that employers take note when an employee references a medical condition when asking to continue working from home because it alerts employers of a potential need for an accommodation. In this way, the phrase will help employers distinguish accommodation requests from other types of asks. "If the person says 'I can't come back because I have a spouse or mother who has a problem,' it wouldn't trigger ADA," Fram told HR Dive. "It may trigger something else, but not the ADA."
HR's move: Follow established accommodation protocol
As an employer explores a request for accommodation, the consideration follows the pattern of any other accommodation ask. Employers are permitted to consider whether the job can be done at home, whether the disability warrants remote work and whether the worker has a disability, as defined by the ADA.
The answers to some of these questions may be complicated if an employer has allowed employees to work remotely throughout some or all of the pandemic. Employers will need to consider the essential functions of a worker's position and ask whether those duties can be carried out away from the office.
"Employers may be in trouble if someone has been working from home for the last two years with great performance reviews," Fram said. "That's going to be evidence that on-site performance isn't essential." If someone has been working remotely carrying out some but not all of a job's essential functions, that should be noted in performance reviews, Fram said.
Employers must also prepare to deal with accommodations within accommodations, Fram said. An organization may grant a worker a remote work accommodation and then field a request for another accommodation — something like a sit-stand desk.
"Who pays for that?" asked Fram. "EEOC says the employer has to pay for the accommodation needed to work at home. That's the easy part, but a lot of people disagree with that. That's a big mistake."
There's a harder question Fram recommended employers grapple with: Accommodations in a hybrid work model. If a company allows everyone to work from home a few days per week, it is required to make sure all workers can enjoy the benefits and privileges of that policy. A worker with a special chair or a sit-stand desk in the office may need access to that at home.
But who pays for the accommodation at home? Fram took the position that the employer would have to pay up, but he admitted that speakers who spoke with him on a recent panel disagreed with him.
As HR departments approve and reject requests for remote work accommodations, they may deal with frustration from those told to come into the physical workspace. "That's where we're going to see a lot of problems, in making sure the decisions are consistent," Fisher Phillips Partner George A. Reeves said in an interview.
In responding to worker frustration, employers need to remember that they can't say that someone has been given remote work permissions as an accommodation, Fram said. "That's disclosing medical information," he said. "Instead, employers should say that it's private information."
Remote work can give rise to other kinds of discrimination, harassment and retaliation issues, outside accommodations. With any type of discrimination claim, the issue is most often based in workers' perception that they're receiving unfair treatment, Reeves said.
When workers feel this way, in-person communications can sometimes reveal true intent. In an in-person setting, a manager who gave a big assignment to a man over a woman may get a chance to explain that another project is coming down the pike, and it's reserved for her. But the woman may never hear that explanation in a remote workplace, where she doesn't bump into the boss in the break room.
Virtual communication may make matters worse than no communication at all. "Where I've seen problems, even before remote work, is communications in email, where the tone is lost," Reeves said.
HR's move: Go back to investigations
If and when HR starts fielding these kinds of discrimination claims, it will be important to proceed with an investigation, though such efforts may be complicated by remote work.
Remote workplaces may give rise to more documentation — HR may have more instant messages and emails to rely on for evidence than it would in an in-person workplace. It can also interview participants in video conferences, to ascertain whether someone treated someone else unfairly.
But investigations in a remote workplace may lose something in translation. "Doing investigations logistically may be harder because you can't just go visit someone in their office," Reeves said. "For those doing the investigation, you lose the ability to get a read on someone's demeanor, which goes a long way in these investigations."
Remote work haven
Reeves warned that employers may see an uptick in discrimination and harassment claims when bringing people back to the office.
"There's a chance that some employees felt somewhat relieved from a feeling of harassment because of remote work," he said. "I've seen some individuals resist coming back to the workplace because they may bring up issues of harassment or discrimination they dealt with before, and now they have to return to it."
This issue may be more pronounced among certain groups of workers. Recent research by the Future Forum found that 97% of Black employees working remotely in the U.S. lobbied for a hybrid or full-time remote working model. Seventy-nine percent of their White counterparts said the same thing. Randstad's Chief Diversity and Inclusion Officer Audra Jenkins attributed that difference to Black employees' lack of psychological safety at work.
HR's move: Keep abreast of harassment issues
Reeves said he cautioned his clients to look out for discrimination and harassment issues that may reignite with workplace reentry. "They may rear their heads now that they're going back," he said.
HR managers may be tempted to treat reports of such problems with skepticism. "Why is it coming up now? Is this just an excuse to work from home?" Reeves wondered.
But that's not the attitude he recommended: "I think there's some legitimacy to the idea that it's something the individual tolerated or maybe didn't realize prior to the solace of work from home, but now they know it's there."