The Route to Reasonable Accommodation Amid a Rise in Work-from-Home Requests

With employers increasingly requiring employees to return to the office after a prolonged pandemic-fueled period during which many came to enjoy the convenience of working remotely, workplaces have seen a rise in work-from-home accommodation requests. How to navigate these requests – to determine what is fair, reasonable, tenable, and legal – is a question that countless organizations are grappling with, and which formed the basis of an illuminating back-and-forth during OBA’s Annual Update on Human Rights.

The Employer’s Prerogative

While it was only five years ago that commuting daily to and from work was so routine as to not warrant a second thought, so much has changed in terms of the culture around, capacity for, and common acceptance of remote work in the interim, that the idea of sitting in an office for eight hours a day, five days a week, can be hard to even conjure today. For that reason – and the fact that many can point to years of evidence now of efficient at-home operation – there will be employees who question the business need for their return to the workplace. But, as Melanie McNaught, partner at Filion Wakely Thorup Angeletti LLP, notes, that call is the employer’s to make.

“The employer has to decide whether remote work will be permitted and, if so, how much remote work, how often, and for what positions,” explains McNaught. She acknowledges there may be pushback but it’s nonetheless “a management prerogative to decide where employees do their work, subject to what might be in a collective agreement or employment contract.”

Create, Publicize and Consistently Enforce a Policy

Employers do require a well-thought-out “positive rationale,” which, McNaught advises, should be laid out in a written policy that also outlines the circumstances in which an employee can or cannot work from home, with details like how many days a week, and any responsibilities to provide equipment.

Once an employer has created that policy, they must publicize it so employees are aware of its contents, and then enforce it – consistently. McNaught cautions that if employers don’t take a consistent approach to enforcement – instead, allowing some employees to decide whether they want to come in – when they then receive a request for a medical accommodation they don’t believe they’ll be able to accommodate, they will find themselves in trouble when faced with the claim that they’ve let ‘so-and-so’ work from home.

When weighing the possibility of constructive or adverse effect discrimination, employers should  do the Meyer analysis of ensuring the office attendance policy was adopted for a purpose or goal rationally connected to the function being performed; was adopted in good faith; and is reasonably necessary to fulfill the purpose or goal so that accommodation would cause undue hardship. It is the last part, says McNaught, where “the battle lies.” But, while the dramatic rise in medical-based requests for work-from home accommodation is a fairly recent development, the law for addressing them, McNaught reminds us, is not new. Employers should already have a process in place – as required by the AODA – for evaluating accommodation requests, and employers should examine them the way they would any others: assessing the circumstances, requirements and restrictions on a case-by-case basis.

Medical Evidence that Focuses on Restrictions and Limitations, Not Diagnosis

McNaught tells employers that they should not be looking for a diagnosis when considering accommodation based on medical evidence, but rather “the nature of medical-condition restrictions and limitations; and how long it’s expected to last.” What can be accommodated in the short term may not be viable long term. So, while a basic note from a doctor saying the employee has to work from home may suffice when it’s only for a day or two away from the workplace, for longer-period requests employers are generally entitled to more detailed information.

“Sometimes doctors do make a recommendation on accommodation,” says McNaught, “but it’s not actually the doctor’s job to determine what the accommodation is; it’s the employer’s.”

Arriving at accommodations is a process in which both parties should participate, with employees providing medical information and employers devising appropriate accommodations.

“It’s also important to remember that the employee is entitled to a reasonable accommodation, but not necessarily their preferred or a perfect accommodation,” says McNaught.

Reasonable Accommodation is Not Necessarily Preferred or Perfect Accommodation

Representing the employee side, Melanie Sutton, an associate at Nelligan Law, concurs with McNaught that reasonable accommodation need not be a perfect one, and that a human-rights accommodation is not about convenience or preference – which can result in tension when an employee who has received a work-from-home accommodation on medical grounds is resented by co-workers who would like to work from home. “Just because other employees may not be happy that one employee has a particular accommodation doesn’t mean that the accommodation isn’t appropriate,” says Sutton. “It’s on the employer to mitigate the perception in the workplace.”

She also agrees that employees need not provide employers with a diagnosis, but rather, enough information about their functional abilities and limitations – and “what it is about the work environment that’s preventing them from performing their duties to the best of their ability” – to discover what kind of accommodation they require. Are they sensitive to particular lighting or sounds? Are the ergonomics of the workspace placing an undue burden? Are there mobility issues that limit access to or through the space? The medical evidence should provide parameters rather than a blanket statement from a doctor saying, “this employee needs to work from home.”

Reverse Onus on In-Office-Work Requirement?

Where Sutton differs slightly from McNaught is that, in her experience, the rational connection between the in-office-work requirement and performance of essential duties is not always straightforward.

In fact, she says, “We’re seeing almost a reverse onus, where employers are requiring the employee to justify why working from home is the only accommodation that would work and that coming into the office would pose undue hardship on the employee, rather than the employer showing that it would be undue hardship to allow the employee to work from home.”

As an example of this reverse onus, Sutton presents a scenario in which an employee who is immunocompromised or has sensory sensitivities is presented an accommodation where they can operate from the workplace by themself in a windowless office, away from other employees, and take meetings on Teams. It technically would work, but as Sutton notes, it begs the question, “Why does the employee need to be in the office if they’re going to be essentially working from a closet all day?” Meanwhile, the employer is asking the employee to justify why the employee can’t just work in a closet. The question should really be “why is this the only accommodation being proposed, when work from home puts no onus on the employer?”

These circumstances serve, yet again, to demonstrate why it’s so important that, after an employee has supplied medical evidence, that both sides engage in the process, says McNaught. “The employer needs to dig into that a little bit … to come up with options.”

Assumptions, Stubbornness, and Other Common Errors

In response to a question from session moderator Nicole Biros-Bolton, founder of Bird Bolt Law, about common errors around work-from-home accommodation requests, Sutton says employees often incorrectly assume they’re entitled to work remotely simply because they’ve been doing so for some time and fail to recognize that the employer, generally, does have the right to require them to come into the office. She also sees situations where employees fail to get the right medical documentation – documentation that focuses on specific limitations and restrictions – and, instead, get a generic “needs-to-work-from-home” doctor’s note.

Similarly, says McNaught, employers can develop a stubborn mindset around requiring employees to come into the office just because they can. “I would really encourage employers to keep an open mind, to consider the medical evidence that they receive, and to follow the process,” she says. “I think if you follow the process and you’re engaged in a constructive dialogue with the employee, even if you can’t reach a resolution, you’re going to be better off in the subsequent litigation.”

As the work ‘place’ continues its rapid evolution, advice for accommodations, as Biros-Bolton sums it up, remains tried and true: “Everybody needs to do their homework and work collaboratively.”