Last week, this Vyopta / Wakefield Survey about employee use of remote technology began making the rounds. The press release highlights “Online Accountability,” noting that nearly a quarter of those surveyed reported they have seen an employee fired because of video or audio conference mistakes. It seems that business leaders expect employees to figure it out — or pay the price.”
The press release also notes, “[i]t’s is not just firing”:
83% have seen an employee receive some disciplinary action. Top actions executives have seen enacted over a call or video conference error include moving the responsibility of managing/facilitating meetings or calls to another staff member (53%); Giving an informal (40%) or formal (38%) reprimand; and Removing a staff member from a project (33%).
This is good clickbait, but I read the results from some of the other survey questions. And they emphasize an employment law point that I’ve been making now for several months.
This online survey of 200 U.S. executives (VP or higher) at companies of 500+ employees asked respondents, “What percentage of your staff do you fully trust to be able to correctly navigate the remote collaboration technology needed to make remote work successful?”
Eighty-two percent fully trusted at least half of their staff not to screw up Zoom and other remote technology. And nearly half of all respondents trust just about everyone to make it work.
Meanwhile, about three out of four respondents expected to maintain or expand the number of employees allowed to work a hybrid schedule.
What does any of this have to do with employment law? The Americans with Disabilities Act requires an employer to provide reasonable accommodation to qualified individuals with disabilities who are employees or applicants for employment, except when such accommodation would cause an undue hardship. One such accommodation could be remote work — unless regular attendance at the office is an essential function of the job.
Some people need to come to work (think: service, healthcare, industrial). But many clearly don’t, or at least it’s a close call if they do. And the trend clearly supports remote work.
Consider the EEOC’s position:
[T]he period of providing telework because of the COVID-19 pandemic could serve as a trial period that showed whether or not [an] employee with a disability could satisfactorily perform all essential functions while working remotely, and the employer should consider any new requests in light of this information.
Anecdotally, judges appreciate that employees can work remotely and succeed. I’ve read several judicial opinions within the past twelve months that involve pre-COVID-19 timelines. Many acknowledge that remote work may be a reasonable accommodation notwithstanding an employer’s say-so to the contrary.
But if you’re one of the companies that insist on having people report to the office regularly, make sure that regular attendance is part of the job description and employees know that it is. Plus, you need to be able to articulate to your employees now the business rationale for not accommodating an employee with remote work, as needed.
Or you may find yourself explaining it to a judge — or worse yet, a jury — later.