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Written by: Federal Practice Group
Written by: Federal Practice Group

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Ensure managers apply telework policies consistently throughout reopening

By Anjali Patel, Esq., cyberFEDS® Legal Editor Washington Bureau

IN FOCUS: As employees begin to return to their workplaces, agencies must ensure their telework and reasonable accommodation policies are applied consistently, Joanna Friedman, a partner at the Federal Practice Group, told cyberFEDS®.

While many employees are ready to be back in the office, others have legitimate concerns about potential exposure to the virus, she said. Some may fear that too many employees will be in an enclosed space without enough room to practice social distancing or worried "about how their potential exposure to COVID-19 may impact high-risk family members within their own homes."

Supervisors will also have different feelings about telework and whether their employees should be allowed to continue working remotely even if the employee's duties can be performed from home, she noted.

"If an employee's work can be performed remotely then for the time being, there is no reason why supervisors should compel employees to come into the office," she said.

Managers also must not reject requests for continued telework arbitrarily, she noted. The circumstances will determine whether the request should be approved or denied -- such as lack of child care, being at high-risk of severe illness from COVID-19, or having a high-risk family member. However, these decisions must be consistent with the agency's policies. If continued telework is granted to one employee because of a high- risk family member, managers must have legitimate reasons for denying another employee's similar request.

Managers also must know that employees may be eligible for different types of leave or flexible work schedules, such as the Families First Coronavirus Response Act. Although telework as a reasonable accommodation is not available for having a high-risk family member, the agency has the discretion to grant continued telework to ensure these employees and their families are safe, she said.

At the same time, "employees must do their part" by ensuring that they perform their work duties and meet their performance expectations so they do not provide management with a reason to question their ability to work from home in an efficient manner, Friedman said.

Not wanting to telework

Managers may also want to protect high-risk employees by keeping them away from the office. However, an employee can't be forced to telework based on an underlying high- risk condition if they want to come into the office unless they pose a direct threat to themselves or others that cannot be reduced or eliminated by reasonable accommodation, according to EEOC guidance.

In evaluating direct threat, the agency must make an individualized assessment that goes beyond being a part of a Centers for Disease Control and Prevention-identified high-risk group. Along with the severity of exposure in the area, the employee's health, and the specific job duties, the agency must weigh:

  • The duration of the risk.
  • The nature and severity of the potential harm.
  • The likelihood that the potential harm will occur, such as whether the person would be exposed to the virus at the work site and steps taken to protect all workers, such as mandatory social distancing.
  • The imminence of the potential harm.

Even if coming to the office would be a direct threat to the employee's life, the agency still must determine whether a reasonable accommodation could reduce or eliminate the threat.

For example, employees may request a reasonable accommodation, such as a workspace that allows for safe social distancing or a flexible schedule that allows the employee to work hours with fewer employees in the building, Friedman said.

So, if a high-risk individual does not want to telework, agencies can take steps to minimize the risk of exposure to the virus while at the workplace, she said.

Agencies will need to determine how to "best implement safe social distancing measures within the workplace so that employees are not at high risk for exposure by simply having to work from their office," she said. This includes figuring out how to ensure germs are not spread in shared workspaces, such as arrangements where two employees use the same desk on alternating days in the office.

Moreover, "some employees do not want to pay the cost associated with working from home in terms of supplies, etc.," and other employees have declined telework "when they feel that they cannot successfully perform their duties from home," she added.

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