FMLA Insights by Jeff Novak – Another Great Employment Law Resource.
I often quote my friend Eric B. Meyer of The Employer Handbook when I’m writing about employment law.
Eric is great at publicizing other specialists, such as Jeff Novak of FMLA Insights https://www.fmlainsights.com/ . The FMLA (Family and Medical Leave Act) has spawned a lot of litigation over the years, so I’m glad Jeff does so much to help employers comply with it.
I tuned into a webinar this morning that featured Jeff Novak with Matt Morris of FMLA Source®. The title of the webinar was peak 2020: Navigating Difficult FMLA and ADA Issues in the Middle of a Pandemic.
Telework Policies Became Ubiquitous This Year. They’re Not Likely to Disappear Any Time Soon.
The FMLA and the Americans with Disabilities Act each require employers to consider making reasonable accommodations to help their employees do their jobs. Jeff and Matt offer the following suggestions for dealing with future requests for teleworking as an accommodation:
Before COVID-19: ⎻ General consensus was that physical presence in the office was an essential function of most jobs and remote work was not a reasonable accommodation.
Teleworking during the shutdown: After weeks or months of teleworking, there will be questions about why employees cannot do so as an accommodation.
Handling future accommodation requests for remote work:
⎻ Why is in-person work necessary?
⎻ What hardships are created by employees working from home?
⎻ Be prepared to agree or to explain that remote work was allowed during the shutdown, but it was not effective (e.g., problems with technology, decreased productivity, etc.)
Conclusion:
Prior to COVID, teleworking was the exception. Employers were forced by the pandemic restrictions to figure out how to make it work for the vast majority of their employees. Now would be a very good time to update your telework policies.
I suggest starting with a review of every job description to evaluate whether in-person work is an essential function of that job. Consult with a lawyer in your jurisdiction with help with this.
Thank you!
Michael Oswald
Please note: the above post contains educational information. It is not intended as legal advice. Engage an attorney who is licensed in your state to get advice on dealing with any specific legal issue.
© 2020 Michael S. Oswald
Michael S Oswald, Chartered 
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