Reasonable Accommodation

In March 2020, businesses across the country had no choice but to shutter their workplaces and permit their employees to work from home (also called “telecommuting” or “teleworking”). With vaccine distribution ramping up and government restrictions loosening, employers are starting to bring their employees back to work.

Now that many employers have been able to conduct business with a telecommuting workforce for the last year, many employers are grappling with the question of whether they will ever be able to deny an employee the ability to work from home as a reasonable accommodation in the future.

I was recently retained by a new client to defend the company against wage and hour charges brought by a former employee that were filed with the California Labor Commissioner’s office. As I do whenever I get a new client, I asked if they had an employee handbook or other written personnel policies. Unfortunately, they did not. This makes it much more difficult to defend against employment claims brought by employees. The failure to have written policies may be taken as evidence that you do not comply with your legal obligations.

Whenever I do employee handbook reviews for new clients, I make sure to always remove their no-fault attendance policies.  These are policies where discipline is automatic after a certain number of absences or a certain number of days of reporting to work late – regardless of the reason for the absence or tardiness. These policies could open an employer up to liability for violating state and federal law requiring reasonable accommodation for employees with disabilities, state and local law providing for mandatory paid sick leave, as well as various other protected leave laws.