How Does Working From Home Impact My Rights?
Even during the COVID-19 outbreak, employers must still provide reasonable accommodations
on April 1, 2020
Updated on May 3, 2022
Due to the COVID-19 pandemic, many Americans are being asked–or required–to work from home because of the Coronavirus. And that raises questions about employer’s responsibilities and employee rights when they’re remote workers no longer reporting to a formal office.
Anthony Sperber, an employment attorney in Berkeley, says the two most common issues he’s seeing so far are: “One, are they going to be laid off because of this, and two, if they had had any accommodations before, would those still be in place during this and or after? In other words, will this somehow reset or upset whatever they had worked out before?”
Your Rights at the Office Still Apply at Home
Just because you’re doing remote work doesn’t mean employment laws no longer apply. “[Employees] essentially have all the rights that they had before,” Sperber says. Even while doing telework, you are considered to be “at work” whenever you are doing your work. “And so if the accommodation used to be you came in to work or left at a certain time, or you were allowed certain kinds of breaks because you needed to do that, that will be true at home the same way it was at the office.”
Still, employees are worried. “People are just very anxious,” Sperber says. “Say they had worked something out; what’s going on right now? And the companies often don’t know what they’re doing, because they’re kind of winging it too.”
One common accommodation issue is working hours. An employee who was allowed to work a flexible work schedule may now be faced with companies scheduling new meetings or deadlines to keep teams connected remotely. “If you say everybody’s got to be on an 8:30 phone call, but a mother has to be doing child care at that time, or the employee, because of a sleep problem or physical problem, has to be doing other things, and they weren’t ever in the office at that time. But now they’re expected to be, and even though it’s virtual, attendance might still be difficult,” Sperber says.
Reasonable accommodations extend to physical equipment like voice-to-text systems for employees who can’t type, or ergonomic standing desks for those with chronic back issues. “You had that at work. But now you don’t have those things. What [the employer] should do, for occupational safety, is get those things to your house,” Sperber says. “Because that is the office now. So all the things that were at the office, within reason, should be at your home office, so you can do your work.”
However, “within reason” is key here. A company may determine that it’s not practical or it’s too expensive to distribute large amounts of equipment to employee’s homes, especially in the near-term. In those cases, Sperber says it’s important to engage in an interactive process where employees and employers can work out a remote work arrangement that’s agreeable to both.
Not having access to reasonable accommodations can impact not only an employee’s health, but also their performance, Sperber says, so it’s important to address issues as early as possible. “They don’t want to keep plowing through something that’s not really working for them and then have, not just physical problems, but people could start having performance problems, because of their work environment” Sperber says. “And then those work-related performance problems can be used against them in their employment reviews.”
Things to Watch Out For
There are a few red flags remote employees can watch for when they are asked or told to work from a home office space. “If they’re being asked to do things they hadn’t done before, and if it’s professionally outside their wheelhouse, or they’re being asked to work hours or with materials that they’re not comfortable with, they should address that so they don’t get themselves into trouble,” Sperber says. “And certainly, any time that they are having physical or emotional problems with what’s going on, they should raise those with their managers or human resources.
When should employees consider getting an employment attorney involved? “It’s one of those things that you can’t quite put an exact timeline on,” Sperber says. “Hopefully people sort of know it when they get there. I would think, in general, it would be after they’ve already done their best to make telecommuting work. If their efforts are not successful or they’re being treated in a way that they think is inappropriate, and they have tried to address that problem and they still have concerns, that would be a good time to reach out to somebody.”