As more businesses return to the office in 2022, and the workplace slowly settles into a post-pandemic equilibrium, many employers are grappling with how remote work should fit into their workplaces in the post-COVID era. While many employees are likely to continue to desire work-from-home options simply as a matter of preference, others may ask to work remotely for more specific reasons. These could include, for example, requests to work from home while recovering from a medical procedure, or while observing certain religious holidays. Recent federal court cases addressing COVID-19 workplace vaccine mandates suggest that employers may be required to grant such requests to more employees in the post-pandemic era.
COVID-19 Vaccine Cases with Broader Implications
Over the past several months, federal courts have issued decisions on challenges by employees in a variety of positions who were denied requests for religious or medical exemption from COVID-19 vaccination requirements. For example, in a case from Massachusetts, a physician, two registered nurses, a technologist and a technical supervisor in radiology, a medical imaging clinical instructor, an electrician, and a “manager of information desks,” filed suit after their employer, a healthcare provider, denied their requests for religious and medical exemption.[1] In another case from Colorado, a ramp services supervisor at an airport filed suit after her employer, an airline, denied her request for a religious exemption.[2] In both of these cases, which were decided in late 2021, the courts ruled that the employer likely did not violate federal laws prohibiting discrimination in employment based on religion or disability when they denied the exemption requests. The courts concluded that, among other reasons, the risk from having an unvaccinated employee work among other individuals would pose an “undue hardship” on the employer, even if other mitigation measures, such as masking or testing, were in place.
These decisions provide some assurance to employers who have denied requests for exemption from COVID-19 vaccination requirements over the past several months. Yet, despite their results in favor of the employer, and their specific focus on COVID-19 vaccination requirements, the decisions also provide important hints as to how the pandemic experiment in remote work has likely changed employment discrimination law in ways that will outlast the pandemic.
In the Massachusetts case, for example, the court noted that the employees who filed suit had not provided evidence that their particular positions could be performed remotely. The court also observed in passing that certain positions are better suited to remote work than others. And in another case from Alabama, in which a federal aerospace contractor denied COVID-19 vaccine exemption requests from several employees, the Court noted that the employer had justified its decision to deny the accommodations in part on the fact that its business required on-site work.[3] The courts’ willingness to at least acknowledge the possibility of remote work as an accommodation for some positions represents an evolution from the pre-pandemic consensus, when an accommodation of remote work was considered essentially per se unreasonable.
While, even in the pandemic era, both courts and the U.S. Equal Employment Opportunity Commission continue to recognize that in-person interaction is essential to many positions, it is likely that employers will need to acknowledge the pandemic experience with widespread remote work as they consider requests for remote work accommodations going forward. This is particularly true given that, in the post-pandemic era, most requests for a long-term remote work accommodation are likely to be based on disability, rather than religion. Importantly, under federal law, the standard for when an accommodation poses “undue hardship” on an employer is higher when the request for accommodation is based on disability, rather than religion. All accommodation decisions must be made on an individualized basis, and it may be that the essential functions of some positions can be performed remotely, especially when the remote work arrangement is only for a few days per week, and/or is not for an indefinite period.
As the “new normal” comes into focus, employers receiving requests for a remote work accommodation would do well to acknowledge the experience of the pandemic, and heed the signals from recent vaccine-related court decisions. For many positions, the days when a remote work accommodation, especially a temporary one, could be dismissed out of hand, are likely over.
[1] See Together Employees v. Mass General Brigham Inc., No. CV 21-11686-FDS, 2021 WL 5234394 (D. Mass. Nov. 10, 2021).
[2] See Barrington v. United Airlines, Inc., No. 21-CV-2602-RMR-STV, 2021 WL 4840855 (D. Colo. Oct. 14, 2021).
[3] See Creger v. United Launch Alliance LLC, No. 5:21-CV-01508-AKK, 2021 WL 5579171 (N.D. Ala. Nov. 30, 2021).
