Until recently, having a pre-existing medical condition bumped you to the front of the line for eligibility to receive a COVID-19 vaccine in Florida. But as of yesterday, April 5, all Floridians age 18 and older are now eligible to receive a vaccine.
As a result, I suspect in the next few months management will sound the “all clear” and request their employees return to the office. I also suspect management will see a push-back from employees with disabilities who will continue to request “work from home” as a reasonable accommodation. If you have any doubt, consider this:
Last month, the EEOC published its annual statistics for charges of discrimination filed in 2020. The report shows a notable drop (7%) in total charges of discrimination filed in 2020 as compared to 2019. And yet, the number of charges filed on the basis of disability as a protected class actually increased slightly from last year (24,324 charges in 2020, up from 24,238 in 2019). This increase of 86 more charges on the basis of disability in 2020 over 2019 is significant, given the overall decline in total charges filed across the various protected classes.
If the past is any indication of the future (and in this case, I think it is), managers and HR professionals would be wise to dust off their interactive process hats. With more workers being invited back into the workplace, requests for disability accommodations to continue remote work in some capacity are to be expected, even where the asserted disability is not COVID-19 related. Employers should also stand ready to manage requests from employees who do not wish to be vaccinated because of a sincerely held religious belief and therefore request to continue remote work arrangements for some time.
Per usual best practice, management should consider each request on a case-by-case basis, and engage in the interactive process with the employee seeking accommodation. Remember that in Florida, if an employee within a protected class is able to perform the essential functions of his or her job with or without a reasonable accommodation, the employer may satisfy its duty to accommodate by providing any reasonable accommodation, so long as it does not place an undue hardship on the employer. The employer need not grant the specific accommodation requested by the individual. However, the employee and employer must engage in the interactive process before a decision can be made.
Working from home may be one of a number of possible reasonable accommodations, depending on individual circumstances. Other accommodations may include, without limitation, a change in work days or hours, moving an employee’s work station or reporting location at his or her request, staggering employee schedules, and other physical or logistical measures that can be implemented within the workplace. If an employer determines that continuing a prior remote work arrangement constitutes an undue burden, the employer must be able to articulate a specific reason(s) why and be able to prove those reasons are valid if put to the test. When in doubt, consult legal counsel.