An employer does not have to return all employees to the workplace at once and may instead choose to have some employees work remotely. An employer that elects to phase employee returns to the workplace while having other employees work remotely must take steps to articulate and document the legitimate, non-discriminatory reasons why they permitted some, but not, all employees to continue to work remotely. To accomplish this, employers should analyze their operations to identify those positions and business function(s) requiring in-office work and those that can continue, for a period of time, to be performed remotely. The focus should be on positions and duties, and not on individuals. The logic and rationale underlying these business judgments are the employer’s legitimate, non-discriminatory reasons that will be cited to rebut potential discrimination claims.
Employers are not required to excuse an employee from performing an essential function of the job, even if the employer temporarily excused performance of certain essential functions by permitting telework during the pandemic to slow or stop the spread of COVID-19. For more on this topic, visit the Jackson Lewis’s privacy blog for a Work-From-Home Checklist During the COVID-19 Pandemic.