By Christina Jaremus, Patrick D. Joyce, Louisa Johnson, and Katherine Mendez

Seyfarth Synopsis: In part one of a series concerning managing the future tele-workforce, below are some tips to navigate reasonable accommodation requests and monitor the performance of employees who will likely be working remotely in greater numbers in the future.

Despite a recent spike in COVID-19 cases around the country, especially in the West and Southeast, states continue to give employers a green light to begin re-staffing their physical offices. However, pandemic preparedness has spurred a monumental shift from physical offices to remote workforces that many believe may be here to stay. Downsizing office space and offering employees the option to work remotely as a permanent alternative eliminates the time and money spent commuting to a physical office each day, saves employers office space expenses, simplifies employee health and safety, and, overall, affords employees more control over their own time. But managing a tele-workforce comes with its own challenges that implicate accommodation laws, workers’ compensation and safety laws, and wage-hour laws, among others.

Future blogs in this series will discuss key issues regarding workers’ compensation and safety that should be considered for a tele-workforce; wage-hour considerations, such as tracking and paying for remote worktime, tracking meal and rest breaks of non-exempt tele-workers, and reimbursable business expenses for remote workers; and finally, technology applications for remote workers, such as data privacy, employer network control, and employee surveillance.

Part One:  Reasonable Accommodations and Performance Management

A.  Determining Which Employees Should Be Permitted to Tele-Work

If physical presence in the office is an essential function of an employee’s job, an employer is generally not required to permit the employee to work remotely as an accommodation. But the shift to tele-work spurred by the pandemic will result in employers likely facing in the future a growing number of requests to work from home as accommodations for disabilities.

Before deciding to deny these requests based on the assertion that physical presence in the workplace is an essential job function — particularly if all or part of the Company’s workforce managed (and maybe even flourished) working remotely over the past several months — employers may want to reevaluate the essential functions of these positions to make sure this argument still holds water.

While employees are still quarantined at home, employers should take some time to clearly document which positions are not capable of being performed effectively from home based on specific problems and performance issues that may have arisen during the mandatory stay-at-home period. This documentation will help to bolster the employer’s position that certain requests to work from home are not reasonable in the long-term future because they were tested during the quarantine and could not be performed with success remotely.

B.  Home Office Equipment for Tele-Workers

If an employer provides special office equipment to employees who meet the ADA’s definition of disability, the employer may be hard-pressed to argue that offering the same accommodation to an employee working from home is not reasonable. For example, providing an ergonomic chair or keyboard necessitated by an employee’s disability would likely be a reasonable accommodation whether the employee is working from home or in an office.

In addition, though not mandated by the Occupational Safety and Health Administration, employers may want to consider the health and safety and productivity benefits of ensuring employees have an ergonomic home workspace. We will discuss these issues in more detail in one of our upcoming blogs in this series.

C.  Flexible Work Schedules And Performance Management for Tele-Workers

Other reasonable accommodation requests may be more complicated to administer when an employee is working remotely. For example, if an employer provides alternative work schedules, and some flexibility in those schedules, to employees working in an office, supervisors can easily monitor the time the employees are actually working by monitoring the employee’s physical presence in the office.

To ensure accountability of employees working in a remote environment, it becomes more important to have a defined work schedule, even if it is an unusual schedule that has large periods of non-working time during the day and contains working periods after standard business hours. For non-exempt (i.e., overtime eligible) remote workers who “clock in” and “clock out” in an electronic timekeeping system, the time records can be used to verify that the tele-worker is adhering to the agreed-upon schedule.

For those remote employees, such as exempt-classified workers, whose adherence to the agreed-upon work schedule cannot be monitored through detailed timekeeping records, employers may want to consider asking employees to regularly or periodically submit work logs to demonstrate that they are meeting expectations concerning their periods of availability and overall work hours.

Another way to monitor productivity is to ask employees to consent to the installation of software to monitor their productivity. As Axios author Erica Pandley discussed in her article 1 Big Thing: Surveilled at Work, many companies “have asked their newly remote employees to install software that tracks their mouse movements or keystrokes or which webpages they visit as a way  to ensure they’re being productive…”  Employees’ attitudes towards such surveillance may be less antagonistic in exchange for flexibility, freedom, and safety assurances associated with being permitted to work remotely. Of course, for some employers, such personal monitoring may clash with the company’s culture or be viewed as too detrimental to employee morale. Thus, this is an option to consider in the context of your specific company’s culture and workforce.

Another option that should be more universally feasible is active performance management. With employees in an office environment, supervisors often use regular meetings or one-on-one time to assess whether employees are meeting goals. With remote employees, this can be more easily overlooked. Therefore, supervisors should be vigilant about scheduling regular face time with their remote employees to ensure they are staying up to date with positive (and negative) employee performance. And management should consider whether there are alternative more metrics-driven key performance indicators that could be used in evaluating employees’ performance. Where it makes sense, more data-based metrics allow employee performance to be measured objectively so that performance of remote employees is gauged on the same accountabilities as employees who are regularly in the office.

In parts two and three of this series, we will provide thoughts about workers’ compensation and safety issues that should be considered for a tele-workforce and wage-hour considerations, such as tracking and paying for remote worktime, tracking meal and rest breaks of non-exempt tele-workers, home office health and safety, and reimbursable business expenses of remote workers.

Those with questions or concerns about any of these issues or topics are encouraged to reach out to the authors, your Seyfarth attorney, or any member of the Labor & Employee Relations or Workplace Policies and Handbooks Teams.