Employer Considerations Before Requiring Employees to Return to the Office

By: C. Tyson Gorman, contributing author Lillie Stivers, Wyatt Summer Associate

With the general belief that COVID is shifting from a pandemic state to an endemic one, many employers have begun to require employees to return to the office. Some employees nevertheless may feel uneasy about returning to an in-person workplace setting or may simply prefer working from home.

Generally, an employer has no obligation to retain an employee who refuses to return to the office. There are some instances, however, where firing an employee or denying further work-from-home arrangements may result in legal repercussions under the Americans with Disabilities Act (“ADA”). The ADA prohibits employers with fifteen or more employees from discriminating against qualified individuals with disabilities who can perform their jobs with reasonable accommodations. This could potentially include requiring an employee who qualifies as disabled to return to the office.

An individual is disabled for purposes of the ADA when they have an actual disability which substantially limits a major life activity, such as walking, talking, seeing, or hearing. It also applies when an employee has a record of an actual disability, such as having cancer, or there is a perception that the employee has a disability. Mental disabilities, including anxiety or depression, are covered as well. In relation to COVID, pre-existing conditions that make the risk of contracting COVID higher or more harmful, such as an immunodeficiency disorder, may qualify.

Employees with disabilities are entitled to reasonable accommodations when they do not create an undue hardship on the employer. When assessing whether remote work is necessary for an employee, obtaining information from the employee’s medical provider regarding the need for the accommodation and the duration may be appropriate.

An employee who has an accommodation for a disability still must be able to perform the essential functions of the job. Because of this, jobs that are more hands-on, such as patient-care professions or manual labor, will be less likely to be accommodated with remote work. Many office jobs, however, can likely be performed remotely, and therefore may be able to be accommodated without creating an undue hardship on the employer.

If an employer denies an ADA accommodation request for remote work because of an undue hardship, the employer must be able to show that it conducted an individualized assessment. An undue hardship can refer to financial constraints or a requested accommodation that would fundamentally alter the nature of the operation or business. Thus, if the role is one in which face-to-face interaction is vital or enhances the performance of the role significantly, undue hardship of accommodating through remote work may apply.

Although requiring most employees to return to the office is acceptable, employers should be wary of mandating all employees return without consideration for those who may be subject to the ADA.  Extra steps should be taken to properly assess requests to remain remote from ADA-protected employees.