Remote Work in Post-Pandemic America
By Alexandria Russell and Ken Bartholomew
More than a year ago, many if not most businesses in New Hampshire faced the decision to either curtail operations or find new and creative ways for employees to work remotely due to the COVID-19 pandemic. Many employers had to and continue to navigate through a myriad of pandemic-related issues, including employee furloughs or layoffs, wage and hour issues, leave requests and the creation of new policies dealing with the safety and health of employees during the pandemic. Now, as the state vigorously pursues vaccination efforts, employers will have challenges about what a post-pandemic “new normal” will look like for them and their employees.
Avoiding Discrimination with Remote Work Policies
While flexible work arrangements are not new, the pandemic led many employers to test how a fully remote workforce would impact their businesses and operations. After an employer has had its workforce working remotely for a lengthy period of time, and the pandemic crisis recedes, the employer will need to decide which employees should be permitted to continue fully remote work or which can remain partially remote workers. In addition to the considerations that employers typically think about with remote work, such as maintaining employee connection, morale and productivity, employers also need to examine the essential functions of each employee’s position and consider applicable discrimination laws when creating and applying remote work policies.
Discrimination on the Basis of Disability
In granting or denying requests for continued remote work, employers should be mindful to avoid discrimination against disabled employees. For private employers with 15 or more employees, state and local governments, employment agencies and labor unions, the Americans with Disabilities Act of 1990, as amended in 2008 (ADA), and codified at 42 U.S.C. Chapter 126, prohibits discrimination of a qualified individual with a disability with respect to job application and hiring procedures, job advancement, firing, compensation, training and other terms, conditions, and privileges of employment. However, New Hampshire’s Law Against Discrimination at RSA 354-A, which also provides protections to disabled employees very similar to the ADA, applies to any employer with six or more employees, the state, and all subdivisions of the state, with certain exceptions.
Upon request from a qualified disabled employee for an accommodation related to work, the ADA requires covered employers to engage in an interactive process with that employee about the request and disability and to provide reasonable accommodations to such employee unless the accommodation would cause undue hardship. New Hampshire’s Law Against Discrimination similarly requires that employers provide reasonable accommodations to qualified disabled employees with an exception for undue hardship. With respect to remote work as a reasonable accommodation, guidance from the U.S. Equal Employment Opportunity Commission, the commission responsible for enforcement of the ADA, provides that an employer does not have to automatically grant remote work requests of every employee with a disability once employees are recalled to work after the pandemic. However, the employer should engage in the required interactive process with each requesting disabled employee to understand that employee’s limitation related to his or her disability to determine whether such accommodation would be necessary or if there is another form of reasonable accommodation at the workplace that would still allow the employer to properly address the employee’s expressed limitation.
While engaged in the interactive process with a disabled employee that requests remote work as a reasonable accommodation, the employer should also consider the essential functions of the employee’s job and whether that employee can perform all essential functions while working remotely. Employers should review job descriptions to guide a determination of the essential functions of a job that an employee would need to perform. The EEOC has clearly demonstrated in its guidance that an employer is not required to grant a request for remote work as a reasonable accommodation to the extent it would require continuing to excuse an employee from performing an essential function of his or her job that was otherwise excused during the pandemic. However, these determinations of reasonable accommodation should be made and documented on a case-by-case basis, and employers should consider whether an employee was able to perform all essential duties during the period of remote work due to the pandemic as a part of this process.
When designing any remote work policy that would apply to all employees generally, employers should avoid automatically requiring remote work for (and thereby excluding from the workplace) any employee that has not received a COVID-19 vaccine. This type of exclusion could run afoul of disability discrimination laws as applied to a disabled employee that may not be able to receive the vaccination due to a medical condition (and/or an employee that is unvaccinated for religious purposes) by creating separate and unequal working situations. Instead, employers should focus on safety precautions for all employees that return to the workplace and/or remote work policies that would not have potentially discriminatory effects. Segregating vaccinated and non-vaccinated employees by shift, team or location can also raise the risk of a bias claim, and should be carefully considered and only implemented based on a strong argument that such segregation is necessary for worker or customer/client safety and cannot be achieved through other methods. The same concern would apply to identifying vaccinated versus unvaccinated employees though badges or differentiated office space.
Discrimination on the Basis of Age
Employers should also consider the protections against age discrimination in the employment context when developing and administering remote work policies. For private employers with 20 or more employees, state and local governments, employment agencies, labor organizations and the federal government, the Age Discrimination in Employment Act of 1967, codified at 29 U.S.C. Chapter 14, prohibits discrimination based on age for employees who are age 40 or older. New Hampshire’s Law Against Discrimination also prohibits age discrimination related to employment. While it has been found by the Centers for Disease Control and Prevention that individuals age 65 and over are at higher risk of contracting a severe case of COVID-19, employers cannot exclude employees from the workplace simply based on age, even if well-intentioned. Additionally, while reasonable accommodations are not required under the ADEA, certain medical conditions of an employee age 40 or over could trigger protection of an individual under the ADA and/or the New Hampshire Law Against Discrimination as a qualified disability, which would require an employer to analyze the considerations described above when deciding on any continuation of remote work or other flexible work arrangements.
Creation and Application of Remote Work Policies
Keeping the specific guidance set forth above in mind, employers should generally aim to create and apply remote work policies that apply to all employees, if possible, or that apply across classes of employees specific to job duties. As individuals approach an employer with specific requests, employers should examine and document each situation on its own and be mindful of compliance with any discrimination laws that may apply, such as those set forth above.
Alexandria Russell is a senior associate attorney at Rath, Young and Pignatelli. Ken Bartholomew is a shareholder at Rath, Young and Pignatelli and chair of the firm’s health care law practice group. Both Alexandria and Ken are members of the firm’s labor and employment and health care law practice groups.