As businesses navigate the complexities of remote and hybrid work policies, leaders often face questions regarding the perceived fairness of such arrangements. Employees performing similar tasks may have different levels of flexibility, leading to concerns about favoritism and inequity.
Employers retain control over the essential functions of a job. Legally, most employees do not have a right to work remotely unless specified in collective bargaining agreements or executive employment contracts. However, the Americans with Disabilities Act (ADA) introduces complexities by requiring accommodations for employees with disabilities, including mental health conditions.
"From a legal perspective, if an employer says part of your job description, part of the essential functions of your job, is being in the office five days a week, they are allowed to do that," says Keith Sonderling, Commissioner of the U.S. Equal Employment Opportunity Commission (EEOC). He emphasizes, "There is no protected right to federal telework."
Sonderling highlights that employers must engage in an interactive process with employees requesting accommodations. The process involves understanding the specific needs of the employee and determining reasonable adjustments without compromising essential job functions. Crucially, the ADA also mandates the confidentiality of medical information, preventing employers from disclosing to other employees the reasons behind certain accommodations. As Sonderling notes, "Employers have to engage in that interactive process if the reason an employee says they can’t come back to work is related to a mental health condition."
And the EEOC is showing its teeth. In a landmark legal settlement, ISS Facility Services, Inc. agreed to a $47,500 payment to resolve an EEOC complaint alleging ADA violations. The case centered on the company's refusal to permit a disabled employee to continue part-time remote work. In another example, the EEOC filed a complaint against a Georgia company for terminating a marketing manager who had sought to work remotely three days a week to manage her anxiety.
Disparate treatment in remote work policies can create a sense of unfairness among employees. Leaders need to navigate these waters carefully, balancing legal obligations with maintaining team morale. Here are key strategies to consider:
1. Educate and Communicate
Effective communication is paramount. Leaders should explain the legal and organizational rationale behind different work arrangements. Emphasize that remote work accommodations due to ADA requirements are confidential and cannot be disclosed. A blanket policy that references government guidance on confidentiality can help mitigate concerns without breaching privacy.
As Sonderling points out, "Employers need to ensure that there’s no violation of the employee’s medical privacy when discussing why certain employees might work from home."
2. Transparency and Consistency
While some aspects of remote work policies must remain confidential, transparency about the criteria for remote work eligibility is essential. Clearly outline the factors considered, such as job role, collaboration needs, and individual performance. Consistency in applying the criteria helps build trust and reduces perceptions of favoritism.
THE BASICS3. Empathy and Support
Leaders should approach discussions with empathy. Recognize the emotional and psychological impact of disparate treatment and offer support where possible. This might include additional resources for employees who are required to be in the office more frequently or flexibility in other areas, such as work hours.
The EEOC provides valuable guidance for handling remote work accommodations. Sonderling stresses the importance of engaging in the interactive process for ADA accommodations. This involves the following:
"The reality is that the ADA is unique because there’s no one-size-fits-all approach to accommodations," says Sonderling. "Employers should engage with medical providers to understand that each situation is different."
Untrained managers can inadvertently create legal risks by mishandling accommodation requests. Investing in comprehensive training for managers and HR professionals is crucial. Such training should cover:
Sonderling warns, "If employers or HR departments are under pressure by their boards or C-suite, they might skip necessary steps. But not engaging in the interactive process when required is a violation of the ADA."
Dealing with disparate treatment in remote and hybrid work policies requires a delicate balance of legal compliance, transparency, and empathy. By educating employees, maintaining consistent criteria, and providing robust training for managers, leaders can navigate the challenges effectively.
Leveraging guidance from the EEOC, such as that provided by Commissioner Keith Sonderling, helps ensure that accommodations are handled appropriately, maintaining fairness and protecting employee privacy. In doing so, organizations can foster a more inclusive and supportive work environment, even in the face of evolving work arrangements. In Sonderling’s words, "The bottom line is, if there’s a request related to mental health or physical disability, HR must go through the proper steps. Ignoring this process is not an option."
A version of this article was published on disasteravoidanceexperts.com
Kalser, L. (2023, Jan 3). EEOC: Company settles ADA suit over refusing remote work for employee at risk for COVID-19. HRDIVE.
Bannon, A.L., Keith, D. (2020-2021). Remote Court: Principles for Virtual Proceedings during the COVID-19 Pandemic and beyond. HeinOnline.
Kossek, E.E., Kelliher, C. (2022, June 15). Making Flexibility More I-Deal: Advancing Work-Life Equality Collectively. Sage Journals.
