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Businesses that are reopening and returning employees to the workplace will undoubtedly encounter some form of the following request: “I don’t want to go back to the office. Can I continue working remotely?”

An employee’s request to work from home (or for some other accommodation) could be for any number of reasons – for example, the employee may have an underlying medical condition, be an older individual, live with an individual who is at higher risk for severe illness from COVID-19, have childcare issues, or just have a generalized fear of contracting the virus at work or while commuting.

Depending on the circumstances surrounding the employee’s request, the employer may have a legal obligation to provide the employee with a reasonable accommodation that enables the employee to perform the essential functions of the employee’s job, provided such accommodation does not result in undue hardship to the employer. The following are some common situations employees are experiencing during the COVID-19 pandemic that may lead an employee to request an accommodation that would enable the employee to continue working, together with a generalized analysis of an employer’s duty to provide an accommodation in such situations. Keep in mind that, in practice, employers must make determinations about accommodations based on an individualized assessment of each situation.

The employee has a disability or is pregnant.

Each of federal, New York State, and New York City law requires employers to reasonably accommodate employees with covered disabilities, and New York State and New York City each have laws that require employers to provide accommodations to employees for certain pregnancy-related reasons. Accordingly, employers must engage in an interactive, cooperative dialogue with such employees to determine if there is a reasonable accommodation that, absent undue hardship to the employer, would enable the employee to perform the employee’s essential job duties.

As a result of the COVID-19 pandemic, there are certain health conditions that the Centers for Disease Control and Prevention (CDC) recognize pose an increased risk of severe illness from COVID-19, such as cancer, chronic kidney disease, obesity, certain serious heart conditions, and Type 2 diabetes. However, not all employee disabilities warrant an accommodation. Generally, the employee must show that the disability limits the employee from being able to perform essential job functions. If the disability or the employee’s need for an accommodation is not otherwise obvious or apparent, the employer may require the employee to present supporting documentation to demonstrate that the employee has a qualifying disability under the applicable law and that the disability-related limitation necessitates a reasonable accommodation. Simply, the employee must describe the limitations caused by the disability and how the requested accommodation will help the employee overcome such limitations.

Typically, depending on the specific circumstances, remote work or working from home has been viewed as a “last resort” accommodation as there are often effective alternative accommodations that can be provided for an employee to continue in-office presence. However, in light of the pandemic, it is conceivable that employees will argue that continued remote work is a reasonable accommodation, particularly if the employee has been equally as effective and productive in performing the employee’s job duties at home as compared to the employee’s performance in the office.

It may have been the case that an employer permitted employees to work remotely because of COVID-19, such as during government-mandated shutdowns, and in so doing excused an employee from performing one or more essential job duties. However, after the employer’s workplace reopens, a request to continue remote work need not be granted if it requires the employer to continue excusing the employee from performing an essential job function, as employers are not required to eliminate an essential job function as a form of accommodation, which is reflected in recent guidance from the Equal Employment Opportunity Commission (EEOC). Employers who are permitting remote work during the COVID-19 pandemic and intend to ultimately return employees to the workplace should make clear to employees that the remote work arrangement is temporary given the unique circumstances presented by the pandemic, and subsequently should handle requests to work remotely as the employer traditionally would for any other accommodation request.

Notably, employers are not required to accept an employee’s first choice of an accommodation if there is another viable alternative that would permit the employee to perform the employee’s essential job functions. In other words, just because an employee’s requested accommodation is reasonable does not mean the employer must grant it – the employer can satisfy its obligation by providing a different (yet effective) accommodation than that requested by the employee. Alternatives to remote work may include for example, depending on the specific circumstances, changes in shifts or work hours, modified workstations, providing additional protective equipment, and partial remote work schedules.

The employee is age 65 or older.

Guidance from the CDC states that as individuals get older their risk for severe illness from COVID-19 increases. In particular, the CDC has reported that eight out of 10 COVID-19 deaths reported in the United States have been in adults age 65 and older, and has encouraged employers to offer flexibility to this group of individuals. Despite such guidance, employers simply do not have a legal duty to accommodate employees solely based on their age. The EEOC, which enforces, among other laws, the Age Discrimination in Employment Act (ADEA), has issued guidance specifically stating that the ADEA does not include a right to reasonable accommodation for older workers due to age.

Employers should, however, be mindful that such older workers may have underlying medical conditions that bring them under the protections of applicable disability accommodation laws. In addition, if employers are offering other workers who are not otherwise entitled to an accommodation the ability to continue working remotely, the employer must similarly offer such benefit to its “older” workers in order to avoid age discrimination claims.

The employee lives with a family member or individual who is at higher risk of severe illness from COVID-19.

Some employees may request remote work because they live with a family member or individual who has an underlying medical condition or who is older and thus is at a higher risk if such individual were to contract COVID-19. However, employers generally do not have a legal duty to accommodate employees based on the disabilities, age, or pregnancy of their family or household members. An employer’s duty to accommodate is generally limited to the individual employee.

Please note, however, that New York City’s recent Temporary Change in Work Schedule law allows eligible employees to request a temporary change in their work schedule (which may include working remotely or taking unpaid leave) for up to two workdays per calendar year for needs relating to a “personal event,” which includes, among other things, an employee’s need to provide care to a family or household member with a disability who relies on the employee for medical care or to meet the needs of daily living. Accordingly, such NYC law could come into play for an employee who needs to care for a family or household member related to the virus.

The employee has a general fear of contracting COVID-19.

There are some employees who are simply concerned about getting sick and fear that their travel to or presence in the workplace may result in contracting the virus. In this situation, once again, the employer generally has no duty to accommodate.

Keep in mind, however, certain mental illnesses may qualify as disabilities under an applicable disability accommodation law and could be exacerbated due to the COVID-19 pandemic. The EEOC has explicitly stated that employees with certain preexisting mental health conditions, such as anxiety disorder, obsessive-compulsive disorder, or post-traumatic stress disorder, may have more difficulty handling the disruption to daily life that has accompanied the COVID-19 pandemic, and thus may now be entitled to a reasonable accommodation absent undue hardship. Accordingly, it is important for employers in each instance to engage in a dialogue with employees to fully understand the basis for an employee’s accommodation request and the limitations that the employee believes warrants an accommodation.

The employee has childcare issues due to COVID-19.

Parents throughout the country have had to deal with school and daycare closures, remote learning, and other childcare issues stemming from the COVID-19 pandemic. Technically, there is no specific “reasonable accommodation” law based on childcare needs under federal or New York law – however, such employees may be entitled to a leave of absence under applicable federal, state, or local laws.

In particular, the Emergency Family and Medical Leave Expansion Act and the Emergency Paid Sick Leave Act of the federal Families First Coronavirus Response Act (FFCRA), which took effect on April 1, 2020, provide for paid leave to a covered employee who is unable to work or telework due to the need to care for a child whose school or place of care is closed, or whose child care provider is unavailable, due to COVID-19. The U.S. Department of Labor (DOL) has taken a broad view as to who qualifies as a “child care provider,” which includes individuals paid to provide child care, such as nannies, au pairs, and babysitters, and also individuals who provide child care at no cost and without a license on a regular basis, such as grandparents, aunts and uncles, or neighbors. Importantly, this leave is not available to employees who are able to work remotely while their child(ren) are home.

With a new school year approaching and schools implementing various hybrid schedules of in-person and virtual learning, the DOL has issued updated guidance on the FFCRA to address what constitutes a school being closed. The DOL has clarified that a school is considered “closed” on days that children are not permitted to attend school in person. For example, if a school is operating on a hybrid schedule where students attend school in-person on some days and have remote learning on other days, a parent can take FFCRA leave on the remote learning days. Separately, if a school provides parents with the option of in-person learning or remote learning and the parents opt for remote learning, the DOL states that FFCRA leave is not available because the school is open for children to attend.

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While employers may not always have an explicit legal duty to provide a reasonable accommodation, for employee morale and related reasons, it is important for employers to not outright dismiss an employee’s good faith request for an accommodation and to consider the employer’s past practices in granting and denying accommodations. For example, if an employer previously provided an accommodation to an employee when it did not have a legal obligation to do so, the employer should act consistently when addressing subsequent accommodation requests for the same reason, in order to avoid discrimination claims. In addition, employers should be mindful that the New York State detailed guidelines for office reopening specifically state that employers should create policies which encourage employees to work from home when feasible. While not a mandatory directive, such guidance could lead employers to be more flexible when addressing remote work and similar employee requests.

This article is primarily meant to address employer obligations to accommodate employees in order to allow employees to continue working and performing their essential job duties. However, employers must remember that a closely related issue (but beyond the scope of this article) is providing eligible employees with a leave of absence or time off from work for qualifying reasons under applicable laws or employer policies, such as sick leave, New York State paid family leave or short-term disability, leave under the federal Family and Medical Leave Act, FFCRA leave and other recently enacted leave laws specific to COVID-19. Although a circumstance may not warrant a reasonable accommodation, employers must also consider whether an applicable leave law applies.

There is no “one size fits all” for addressing employee accommodation requests. As previously mentioned, employers must consider all facts and circumstances when making a determination regarding an employee accommodation and must do so on an individualized, case-by-case basis. Employers should ensure their accommodations policies are current with applicable laws and guidelines in this fast-changing environment. In addition, employers should consult employment counsel to address both their legal obligations and best practices for handling challenging workplace accommodation requests, particularly during this unprecedented pandemic.

For more information on the topic discussed, contact:

• Andrew W. Singer  |  singer@thsh.com  |  212-508-6723
• Andrew P. Yacyshyn  |  yacyshyn@thsh.com  |  212-508-6792
• Elizabeth E. Schlissel  |  schlissel@thsh.com  |  212-508-6714
• Jason B. Klimpl  |  klimpl@thsh.com  |  212-508-7529
• Joel A. Klarreich  |  jak@thsh.com  |  212-508-6747
• Stacey A. Usiak  |  usiak@thsh.com  |  212-702-3158