Employee fails at telework, then asks to work from home as accommodation

Q         We asked an employee who was working from home to return to the office because he failed to perform his job duties. Now, in the midst of a disciplinary process, he has submitted a request to work from home as a reasonable accommodation to prevent exposure to COVID-19. Are we required to grant his request?

A   Fear of exposure to COVID-19 is not a disability. If he has an underlying disability that causes him to be at higher risk from the virus or that has been exacerbated by the outbreak, however, the Equal Employment Opportunity Commission (EEOC) has stated you should consider whether continued telework might be a reasonable accommodation. You should engage in the interactive process with him to:

• Understand the basis of his concern;
• Determine whether he has a disability; and
• If so, explore possible accommodations that would minimize his potential for exposure.

Through discussions with the employee and his healthcare provider, you may determine you can adequately reduce the potential for exposure through accommodations that permit him to work safely in the office.

Whether he returns to work or continues to telework, you’re entitled to (1) hold him to the workload and quality standards you apply to others in his position and (2) continue with the disciplinary process you have begun.

Brad Cave is an attorney with Holland & Hart LLP in Cheyenne, Wyoming. You can reach him at bcave@hollandhart.com.