Coronavirus in the Workplace

Employees Don’t Get to Telework Just Because They Want To…

By Courtney Amelung - Shawe Rosenthal LLP

March 31, 2021

In response to the coronavirus pandemic, many employers have permitted or mandated telework arrangements for their employees.  As more people become vaccinated and the number of new COVID-19 cases declines, however, those employers will likely begin to recall their employees to the office.  Unsurprisingly, many employees have become accustomed to working from home over the past year, and enjoy the ability to wake up, throw on athleisure, and do a couple loads of laundry as they go about their workday.  This begs the question: is an employer obligated to permit an employee to telework simply because the employee finds working from home more preferable, desirable, or convenient than going to the office?   A federal judge in the District of Columbia recently said “no.”

In that case, a FEMA employee filed a claim under Title VII of the Civil Rights Act of 1964 claiming that the Agency’s denial of her request for an increased telework schedule was based on her race or color.  At the time the employee requested increased telework, she was already working from home two to three days per week.  However, she didn’t like her three-hour commute from Virginia to Washington, D.C. and wanted to spend more time with her family.  Additionally, she and her husband had decided to move to Florida.  The employee requested to work remotely most days and come into the Agency’s office two days every two weeks.  The Agency denied her request because her role required face-to-face engagement with customers, her proposed schedule was inconsistent with the schedules maintained by other employees in the department, and her director expected employees in her role to be in the office at least two times per week.

The employee claimed that the Agency’s denial of her telework request constituted an adverse employment action because she was forced to spend $600 per trip commuting between Florida and Washington, D.C (which she did twice per month for 25 months) and because she suffered physical damage to her knee by travelling so frequently.  (But what about the air mileage and credit card points?!?!)  The court, however, disagreed with the employee.  Specifically, the court said that the employee’s request to telework was based on “idiosyncrasies of personal preference” – namely, her dissatisfaction with her commute, her desire to spend more time with family, and her decision to move to Florida.  According to the court, the employee’s failure to secure her ideal telework arrangement was not the type of injury necessary to establish her discrimination claim.

Of note, particularly in the current COVID-19 climate, the court also rejected the employee’s argument that her request was justified by the recent upsurge in telework arrangements.  In other words, the fact that teleworking had become more prevalent and accessible had no bearing on whether the employee should be permitted to telework.

This case is helpful for employers who are currently encouraging or requiring a return to the office (or will do so in the future).  Employers should keep in mind that denial of an employee’s request to continuing teleworking – when that request is based solely on the employee’s personal preference – is an appropriate response. (And we’re not talking about telework as a reasonable accommodation under the Americans with Disabilities Act – that’s a different issue!) I guess it’s time to start waking up earlier, showering every morning, putting on real clothes, and heading into the office!

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