Question: Can remote-work policies from the COVID pandemic be used against a company trying to bring employees back into the office?
Answer: In certain circumstances, yes. Recently, courts have allowed juries to decide if on-site work is essential when the employer couldn’t definitively demonstrate on-site work was required or when a previous policy allowed substantial remote work.
Question: What if the medical documentation provided by an employee appears untrustworthy?
Answer: If the employee hasn’t produced reliable medical documentation, then the employer may require the employee to submit to an independent medical examination (IME) to ascertain the alleged disability and reasonable accommodations, provided the examination is job-related and consistent with business necessity. Physicians who regularly conduct IMEs often provide concrete accommodations recommendations, which may present reasonable alternatives to remote work. The decision to ask for an IME shouldn’t be made lightly. Any decision to terminate or discipline an employee who refuses to submit an IME should be backed up with a valid reason for requiring the IME in the first place.
Question: What can the company do if an employee refuses to take part in the interactive process?
Answer: The interactive process requires the good-faith participation of both the employer and employee. This means that, while employers should be understanding as employees deal with the stress that often accompanies a new disability, the employer doesn’t have to take orders from the employee. If the employee refuses to explore alternative accommodations with the employer or refuses to provide information necessary to clarify the extent of medical restrictions, then the employer may not be obligated to provide any accommodation. In certain situations, the employer may terminate the employee for refusing to take part in the interactive process when the employee prevents the employer from determining whether a reasonable accommodation is possible and the employee isn’t doing their job.
It’s important to keep in mind that just because an employee has requested or received an accommodation, they aren’t exempt from termination or other discipline for unrelated reasons. However, terminating or disciplining an employee soon after an accommodation request is risky, and that decision should be reviewed by counsel.
Joseph Robertson is an attorney with Holland & Hart LLP in Denver and can be reached at jcrobertson@hollandhart.com.