Last month, I attended the Ohio SHRM State Council’s Legislative and Employment Law Conference. One presentation seemed especially timely, as it covered the tension between employers requiring physical presence at work and employees with disabilities requesting telework as an accommodation.
As a brief refresher, the Americans with Disabilities Act requires employers to provide reasonable accommodations to qualified individuals with disabilities which enable them to perform the essential functions of their job. In other words, organizations may need to adjust various parts of the employee’s work experience, such as the schedule, frequency of breaks, workstation set-up, or even whether the employee is required to be physically present. HR will take the lead in discussions with the employee to determine what that reasonable accommodation will be. If this interactive process breaks down, the conflict may end up in court.
From 2017 to 2019, employers won 77% of the remote work accommodation cases which made it to the courtroom. Between June 2022 and June 2023, employers only won 42% of those cases. The presentation suggested that one contributing factor is that judges and juries are increasingly more curious to hear why employees need to be physically present.
Not only is it important for organizations to articulate why in-office presence is an essential function, but another action could set organizations up for success when engaging in the interactive process. Ask the employee what home has that work does not. Then look at what the company can do at the workplace to help meet that employee’s need. Does the employee need more frequent restroom breaks? Perhaps relocate their workstation to a place closer to the restroom. Does the employee need easy access to a refrigerator for medication? Procure a mini-fridge to have close to them.
As always, if you find yourself in need of assistance in navigating the Americans with Disabilities Act and supporting your employees who need accommodations, reach out to the HR business advisors on the hotline at 866-474-6854 or [email protected].
