Inconsistent Remote Work Policies Create Legal Troubles for EPA: Tips & Best Practices for Employers?

Written by: Monica Munin, Esq.

On October 20th, the American Federation of Government Employees Local 704 (“Local 704” or “the Union”) filed a lawsuit on behalf of Environmental Protection Agency (“EPA”) employees located in Region 5, alleging that the EPA is intentionally withholding records subject to the Freedom of Information Act (“FOIA”) for the purposes of delaying the union’s investigation into discrepancies in the application of the agency’s remote work policy across different regions of the country. Region 5, which includes Illinois, Indiana, Michigan, Minnesota, Ohio, and Wisconsin, is the largest of the EPA’s ten (10) regions. According to the Union, Region 5 employees “faced unfair denials of their requests for remote work compared [to other regions].”

The lawsuit is just one example of how inconsistent remote work policies can create problems for employers as employees and their managers acclimate to their “new normal.” Generally, employers are not required to offer employees the option to work remotely, with the main exception being requested for accommodation under the Americans with Disabilities Act (ADA). However, policies viewed as inconsistent or unfair can create other problems for employers and dampen employee morale during a time when it is increasingly difficult to find and retain quality employees. To avoid grievances and allegations of discrimination or disparate treatment, I would generally recommend that employers consider creating and including a comprehensive remote work policy that includes, at a minimum, the following:

• The name and contact information of the person responsible for processing and evaluating a request to work remotely.
• A clear definition of what is a general request to work remotely as well as an explanation of how a request to work from home to accommodate a disability differs from a general request to work remotely (as a reminder requests for an accommodation under the ADA are subject to a different analysis and process as the federal law requires employers to engage in an interactive dialogue with the employee that focuses on the employee’s limitations and essential job functions, employers have more discretion with respect to requests for remote work that are not based upon a need to accommodate a disability).
• What positions are eligible for remote work?
• What criteria the Company will use when evaluating a remote work request?
• An explanation of what the Company expects from remote workers as well as clear guidelines for supervision and performance monitoring.
• A disclaimer that the Company retains the right to change its policy or decision based upon the needs of the business and/or the employee’s performance while working remotely.
• A summary of how remote employees will be included in Company culture and decision-making.

The pandemic brought about a massive change in how and where employees do their work, a change that is likely here to stay for the long haul. While we are just beginning to see the legal ramifications of this change, employers can safeguard against potential discrimination claims or grievances/ general employee dissatisfaction by investing the time and resources necessary to create a clear and comprehensive remote work policy. Questions about your telework policy? Need guidance regarding this or other employee handbook topics? Contact Monica Munin, Esq. at mmunin@vfnlaw.com.

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer