When must an employer allow remote work as a reasonable accommodation to an employee’s disability or serious medical condition under California’s Fair Employment and Housing Act (FEHA)?
FEHA & Reasonable Accommodation Basics
FEHA requires California employers with five or more employees to provide reasonable accommodations to qualified employees with disabilities, unless doing so would impose an “undue hardship”. Reasonable accommodations may include changes to job duties, modified work schedules, assistive devices—and yes, in some cases – remote work.
Is Remote Work a Reasonable Accommodation?
The short answer: It depends.
Remote work can be a reasonable accommodation under FEHA, but it’s not automatically required. The key legal question is whether remote work enables the employee to perform the essential functions of their job without imposing undue challenges on the employer’s operations.
Key Factors To Consider:
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Essential Job Functions:
FEHA does not require employers to eliminate essential job functions as an accommodation. If in-person work is an essential function (e.g., face-to-face interaction, on-site supervision, operating equipment which cannot be done remotely), remote work may not be considered a reasonable accommodation. -
Job Duties:
The specific duties of the job must be reviewed carefully. Many office-based positions that historically required in-person attendance can often be performed remotely, particularly if the pandemic period demonstrated that the role can be successfully performed remotely without any issues or without serious issues. -
Employer’s Past Practices:
If an employer allowed remote work during COVID-19 or allows some employees to work remotely for other reasons, that could undermine their claim that remote work creates an undue hardship on their operations. -
Interactive Process:
FEHA requires a good-faith interactive process, i.e. an open dialogue between employer and employee about accommodations options and effective solutions to allow a disabled employee to continue working. Blanket denials of remote work without engaging in this interactive process are likely to violate the law.
Undue Hardship Still Applies
Employers may deny remote work as an accommodation if it would cause an undue hardship—defined under FEHA as significant difficulty or expense considering:
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The nature and cost of the accommodation;
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The employer’s financial resources;
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The impact on business operations.
However, this defense can be difficult to prove if remote work has been widely permitted or shown to work during COVID-19. Also, the employer bears the burden of proving that granting a particular accommodation would have imposed an undue hardship on their operations. The “undue” part is important. Simply pointing at a trivial challenge that an accommodation creates is not going to be enough to meet this burden and it has to be a significant challenge for the employer in terms of costs or manner of operations.
Key Case Example:
While California courts are still developing case law in this area, federal courts applying the ADA (which is similar to FEHA) have increasingly recognized remote work as a reasonable accommodation where:
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The employee can perform core job duties remotely;
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Other employees already work remotely;
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There is a history of remote work in that role.
California courts are likely to follow similar reasoning.
Practical Tips for Employers:
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Engage in the interactive process in good faith before denying any remote work request.
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Analyze whether in-person attendance is truly essential and whether you can demonstrate this to a judge / jury, if need be.
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Document all relevant discussions regarding remote work options.
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Consider trial periods of remote work to assess feasibility before you make your final decision.
Tips for Employees:
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Clearly explain your disability-related limitations, and why remote work would be a reasonable an effective accommodation.
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Propose a remote work arrangement that allows you to perform essential duties.
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Offer solutions for communication, supervision, and collaboration.
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Be prepared to engage in a back-and-forth discussion and to also compromise on partially remote schedule, i.e. coming to the office a couple of times a week or several times a month.
Conclusion:
Remote work is no longer an unusual accommodation—it’s a central part of the reasonable accommodation landscape in California under FEHA. Both employers and employees should approach requests for remote work carefully, keeping in mind FEHA’s core principle: flexibility in enabling employees to do their jobs. Each situation and each request should be evaluated individually in light of its own unique circumstances.