New Rules Surround Work From Home During COVID-19

A new rule requires employers to reimburse employees who are required to work from home for “expenditures incurred by the employee in direct consequence of the discharge of his or her employment duties.”  For example, the Illinois Wage Payment and Collection Act generally requires employers to reimburse their employees only for “necessary expenditures or losses” incurred by the employee in direct consequence of working from home. As such, it is important for companies to define the term “necessary” expense.

As employees return to the physical worksite during the COVID-19 pandemic, employers should be mindful of employee circumstances that may not be addressed under the Families First Coronavirus Response Act, the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), and local paid-sick-leave laws.

The policy should identify the permissible reasons that may trigger an accommodation (e.g., the employee is at higher risk for severe illness, lives with someone who is high risk, or has caregiving obligations for children or older relatives, etc.). The policy should specify the employer’s process for responding to a request, including engaging in an interactive dialogue with the employee to identify the specific basis for the request and the work accommodation the employee is seeking. The employer should carefully evaluate each request and consider workplace alternatives that may address the employee’s concerns while balancing the employer’s business needs. The employer may choose to request documentation supporting the basis for the employee’s request (keeping in mind that certain statutory protections limit the type of documentation an employer may request), such as certification from a health care provider, or require the employee to self-certify to the reasons supporting the request.

A COVID-19 accommodation policy supplement the employer’s existing reasonable accommodation policy. Like the accommodation policy, employers should evaluate COVID-19-related requests on a case-by-case basis and in consultation with HR. Workplace accommodations may vary based on the situation but may include telecommuting, rotating telecommuting with physically reporting to the office, reducing schedules or taking a leave of absence. Any accommodation should be documented and reviewed at least every 30 days should business needs or COVID-19-related guidance change. Finally, the policy should be applied consistently across the workforce to avoid discrimination claims.

According to the Equal Employment Opportunity Commission (EEOC), in its EEOC Enforcement Guidance on the ADA, a “statement that an individual receives a reasonable accommodation discloses that the individual probably has a disability because only individuals with disabilities are entitled to reasonable accommodation under the ADA. Start by asking an employee who is concerned about perceived unfairness about a co-worker working remotely why he or she wants to work from home. If the employee reveals that he or she may have a disability that places them at risk for COVID infection, you should initiate the same ADA interactive process that led you to provide telework to other disabled employees. However, if the employee does not disclose a need to telework for health reasons, this employee will not be entitled to remote work as an accommodation under the ADA.