“Ask Sarah” Column

Dear Sarah,

One of our employees has medical issues and recently asked to work remotely as an accommodation. The problem is, we already have performance concerns. They miss deadlines, need a lot of follow up, and generally are not thriving in the role to say the least. We are worried that letting them work from home will make those issues harder to manage. Do we have to say yes?

Signed,
Remote but Not Relaxed

Dear Remote,

Not automatically but you also should not jump straight to “no.” With more employers bringing employees back to the workplace, requests for remote work as a disability accommodation are becoming increasingly common. Under the Americans with Disabilities Act, employers must provide reasonable accommodations for the known physical or mental limitations of an otherwise qualified individual with a disability, unless doing so would create an undue hardship. In some cases, remote work can be a reasonable accommodation but that does not mean every request to work remotely must be approved.

The employee still has to be able to perform the essential functions of the job with the proposed accommodation. If the employee can do that, the employer must provide the requested accommodation or an equally effective alternative, unless doing so would impose an undue hardship on the employer’s operations.

So, the question is not: “Are we worried this employee will perform worse from home?” The better question is: “Can this employee perform the essential functions of the job remotely, and if not, is there another effective accommodation that would allow them to do so?”

Performance concerns do not disappear just because an employee requests an accommodation. Employers may still hold employees to legitimate performance and conduct standards, but performance concerns cannot be used to avoid the ADA process. The employer still needs to engage in the interactive process, which is a good faith, back and forth conversation with the employee about the medical limitation, the accommodation requested, whether the accommodation would allow the employee to perform the essential functions of the job, and whether an alternative accommodation would be equally effective.

This is where employers might err. Saying, “We do not trust this employee to work from home because they already struggle in the office,” may be understandable from a management perspective, but it is not part of the ADA analysis. Instead, you should separate two issues: the employee’s performance history and the accommodation request.

You can continue to manage performance, document missed deadlines, quality concerns, attendance issues, or failure to meet expectations and you do not have to lower standards or remove essential job duties. At the same time, you should still evaluate whether remote work would allow the employee to perform the essential functions of the job going forward. If remote work would not allow the employee to perform those essential functions, you should be prepared to explain why.

For example, does the position require regular in-person interaction with the public, clients, students, residents, or coworkers? Does the employee need to access physical files, equipment, or materials that cannot leave the workplace? Does the job require on-site supervision, hands on work, immediate response to in person needs, or coordination that cannot be performed remotely? Those specific facts matter, and keep in mind that under the ADA’s framework, it’s your job as the employer to be able to produce evidence that makes this showing.

You may also want to consider whether there is an equally effective alternative accommodation. The ADA does not require the employer to provide the exact accommodation the employee requests. Depending on the medical limitation and the job, alternatives might include a hybrid schedule, modified start and end times, a quieter workspace, additional structure or check-ins, temporary remote work, leave, changes to nonessential duties, or other measures that would allow the employee to perform the job’s essential functions.

If remote work is approved, you should document the arrangement in writing. The agreement should make clear that the employee remains responsible for meeting deadlines, responding to communications, attending meetings, maintaining confidentiality, and satisfying all ordinary performance expectations. In some cases, a temporary trial period may also make sense, especially where the employer is unsure whether the arrangement will be effective.

So, do you have to say yes? Not necessarily. But before saying no, you must engage in the interactive process, identify the essential functions of the job, consider whether remote work would allow the employee to perform those functions, evaluate equally effective alternatives, document the reasons for your decision, and keep the employee’s performance separate.

In short: the ADA does not require you to ignore performance problems or turn every job into a remote job. But it does require you to answer the accommodation question carefully, based on the job’s actual duties and the employee’s actual limitations, not just the fear that managing the employee from afar will be even more frustrating than managing them from down the hall.

“Ask Sarah” is prepared by Sarah Glaser, Managing Director and Chair of the Firm’s Employment Law Practice Group. If you would like additional information, please contact Sarah at 512.322.5881 or sglaser@lglawfirm.com.