After learning to operate remotely, employers across the country have been reconsidering the place of telework, particularly as an accommodation for individuals with disabilities. As employers move forward with a “new normal” perspective on telework, the Equal Employment Opportunity Commission (EEOC) has been continuing its enforcement effort surrounding telework accommodations.
As your risk management partner, HBL offers you strategies to address telework accommodations without compromising your organization’s values.
https://www.youtube.com/watch?v=IdO_YC9lIHA
Tip #1: Develop and implement a telework policy.
Although you, as the employer or HR professional, may need to make exceptions depending on the circumstances, carefully defining your expectations for in-person attendance will certainly be important to risk management. In virtually every case where an employer maintained a telework policy or program, the employer’s standards was relevant to show how important (or unimportant) in-person attendance was to the job.
Tip #2: Carefully review job descriptions with the employee and his or her supervisor.
For an employee to be entitled to an accommodation, the employee must be able to perform the essential functions of the job. In assessing the essential functions, courts will turn to the job description, particularly where the job description was developed prior to hiring the employee. To explain to the EEOC or a court that in-person attendance is an essential function of the job, the credibility and accuracy of your job description can make or break your case.
Tip #3: Evaluate and document the outcome of all trial periods.
When the EEOC or a court considers whether telework would allow an employee to perform the essential functions of the job, all telework trial periods are relevant to the EEOC or court’s consideration. In fact, telework during the pandemic is viewed by the EEOC as a telework trial period, even though the employer had little to no control over moving to a remote workplace. Employers are best advised to document the outcome, including all relevant observations, of telework trial periods. Even if the employee him or herself performed well, it is worth noting if the loss of in-person staff also resulted in a business downturn.
BONUS TIP: For a winning strategy before the EEOC, begin preparing your defense before you receive an EEOC Charge.
For maximum results before the EEOC, employers and HR professionals are best advised to handle every accommodation request as though the company will need to explain and document every step to the EEOC. With every step of the interactive process, make sure there is a carefully crafted document explaining the employee’s request and your response. If you can anticipate every document being read by an EEOC investigator, you will be in the best position possible to present a winning strategy before the EEOC.
If you have any questions about the above, please contact Hall Benefits Law. We would love to hear from you, and the HBL team looks forward to serving as your legal risk management partner!
Hall Benefits Law, LLC
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