Employers need to follow the law when making decisions about remote work.
Over the last three years, more and more employers in Ohio and around the country have been offering employees the option of working at home. Some workplaces have gone fully remote. Many others are "hybrid," with some employees working from home and others in the office. And still others are requiring every employee to come to the office every day, even if their work could, in principle, be done from anywhere.
Under these circumstances, it's reasonable for an employee to ask, "Does my employer have to let me work from home?"
The short answer is no. Under the law, employers are free to decide that coming to the office is a job requirement (and employees are free to decide whether they want to take or leave the job under those terms). Employers are also generally free to decide to allow remote work for some roles and not others, and they can set conditions (e.g., seniority or job performance) to qualify for telework. However, there are several circumstances where an employer's decision to disallow remote work could violate certain employment laws, and it's important for employees navigating this situation to know their rights.
Remote work as a reasonable accommodation for a disability
There are numerous disabilities covered under the Americans with Disabilities Act for which remote work could be a reasonable accommodation, either temporarily or permanently. If the employee is unable to physically access the employer's on-site facilities, for instance, then remote work may be a temporary accommodation until the employer is able to make accessibility modifications to the facility. In other circumstances, remote work may be a permanent accommodation.
For employers that already have a telework program for at least some employees, a reasonable accommodation may involve waiving other requirements to allow the disabled employee to participate. For example, if your employer typically allows telework once you have been in your role for a year, a reasonable accommodation for a disability might include waiving the one-year waiting period and allowing you to start working remotely right away.
However, as with all reasonable accommodations, an employer does not have to accommodate you in exactly the way you request. Rather, the employer is required to engage in an interactive process to find a resolution. In general, if your employer is able to accommodate your disability on-site, then they can require you to come to the office.
There are several other ways your employer could dispute a request to work remotely as a disability accommodation. For instance, they may argue that the essential functions of your job require you to be on-site. Your employer could also argue that they cannot reasonably accommodate telework because it would be an undue hardship. (It's worth noting here that if they successfully implemented remote work during the COVID-19 pandemic, this is a tougher argument to make.)
In short, the question of remote work as a disability accommodation is "it depends." Employers are not necessarily required to let you work from home, but they are required to comply with the ADA and find a reasonable accommodation if one exists — which may include a fully or partially remote schedule.
Discrimination and retaliation in decisions regarding remote work
Again, employers are generally free to allow some employees to work remotely and not others, and they are free to have criteria for who is allowed to work remotely, such as seniority, merit, or length of commute. They can even make those decisions for reasons that seem unfair or arbitrary. However, as with any employment action, they cannot make remote work decisions for an illegal reason.
So, for instance, if your employer is allowing some employees to work remotely and denying others on the basis of race, sex, religion, age (if over 40), or other legally protected characteristics, that could run afoul of anti-discrimination laws. And if your employer revokes your telework after you engaged in a protected activity, such as reporting sexual harassment or requesting FMLA leave, that could be legally actionable retaliation.
Talk to an attorney if your rights have been violated
While employees are generally free to set their own remote work policies and change them as they see fit, they are not allowed to violate employment laws in the ways they implement and enforce those policies. If you believe your employer has violated your rights under federal or Ohio law, you may have recourse. An experienced employment law attorney can help. Contact Gibson Law, LLC to learn more.