If your organization is preparing to call employees back into the workplace after a 15-month work-from-home COVID hiatus, it’s important to be aware of the potential legal risks. That includes dealing with workers who want to stay remote, either as a preference or as a legal accommodation.
Here are some best practices for ending teleworking arrangements, according to a report by the McAfee & Tate law firm.
- Give employees advance notice of your termination of the remote-work arrangement. Their pandemic schedules and habits are their new normal. Provide as much notice as possible.
- Notify them regarding the reinstatement of any “essential functions” that may have lapsed during the pandemic. This is important. Address is directly and reset expectations. Specifically identify duties that were not required (or were altered) during the pandemic, and explain that they will be reinstated on the recall date. Rewrite the person’s job description if necessary, specifically addressing those essential tasks.
- Tell workers to bring concerns about returning to HR immediately. To ensure consistent messaging, designate a specific HR person to have these conversations. Be prepared to distinguish between (1) general COVID fear and (2) concerns related to underlying physical or mental impairments. The former is typically not grounds for the worker to refuse to return to the workplace. The latter may require a potential accommodation under the ADA.
- If employees’ concerns relate to a medical or physical impairment, engage in an interactive process, as required by the ADA. Have these conversations early, preferably on the phone before the return date. The goal is to obtain information about the impairment, including its duration and impact on performance of essential functions. This is a good itme to clarify any revised essential functions or expectations, particularly any reinstated duties that cannot be performed effectively at home. Document this discussion.
Key point: The EEOC has said that if you recall a remote employee to the workplace after the pandemic, you don’t have to automatically allow continued teleworking as an ADA accomodation.
Also, the EEOC says, the fact that you temporarily excused performance of some essential job functions during the COVID remote year doesn’t mean you’ve permanently changes a job’s essential functions. You can restore those essential duties, and then evaluate any request for new or continued duties under the usual ADA rules.
Source: HR Employment Law May 21, 2021