Can remote polices from the pandemic be used against a company trying to bring employees back into the office?
In certain circumstances, yes. Recently, courts have allowed juries to decide if onsite work is essential when the employer could not definitely demonstrate that onsite work was required or when a previous policy allowed substantial remote work.
What if the medical documentation provided by an employee appears untrustworthy?
If the employee has not 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 that 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 should not 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.
What can the company do if an employee refuses to take part in the interactive process?
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 does not 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 obliged 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 is not doing their job.
It is important to keep in mind, just because an employee has requested or received an accommodation, that employee is not 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.
