Will Working from Home Become A Statutorily Protected Right?

The California Legislature is considering whether employees who are currently working from home have a right to continue to do so until the employer provides advance written notice of the need to return to the workplace. Senate Bill (SB) 731, introduced by Senator Ashby, is making its way through the Legislative committee process and was set for hearing on May 18, 2023.

If passed, SB 731 would make it an unlawful employment practice for an employer to fail to provide an employee who is currently working from home pursuant to an agreement with, or policy of, the employer with at least 30 days’ advance notice before requiring the employee to return to work in person.   Further, the new law would require that the advance notice of return to work contain prescribed language about the rights of an employee to request remote work as a reasonable accommodation for a disability.

As currently drafted, SB 731 provides that an employer’s advance 30 days’ notice to remote employees must contain the following language:

“You have the right to ask your employer to allow you to continue working remotely as an accommodation if you have a disability. Your employer is required to engage in a timely, good faith, interactive process to determine if there are effective reasonable accommodations for your disability, including working remotely. If you are able to perform all of your essential job functions while working remotely, your employer must grant your request unless it would create an undue hardship for your employer, an alternative reasonable accommodation is available, or you do not meet the definition of disability under the law. You can learn more about your rights here.”

The author of SB 731 claims to be concerned that as many employers have, or will soon, migrate back to in-person work, the opportunities for employees with disabilities to work remotely may begin to recede.  However, as many studies have shown, a large percentage of employees continue to want to work remotely even though the need to do so because of the Covid-19 pandemic has ended. This desire for remote work is not tied to the fact that employees are suffering from disabilities, but instead is based on flexibility. For example, the third edition of the McKinsey & Company “American Opportunity Survey” provides key data on how flexible work fits into the lives of workers. The survey revealed that 87% of employees across all demographics, occupations, and geographies chose remote work, with 80 million Americans engaging in it. According to the McKinsey & Company’s survey report, “[t]he flexible working world was born of a frenzied reaction to a sudden crisis but has remained as a desirable job feature for millions. This represents a tectonic shift in where, when, and how Americans want to work and are working.” [https://www.mckinsey.com/industries/real-estate/our-insights/americans-are-embracing-flexible-work-and-they-want-more-of-it]

Thus, if passed, SB 731 will likely result in covered employers fielding numerous requests for remote work as a reasonable accommodation, not only from employees who have  legitimate and qualifying disabilities, but also from employees who merely do not want to return to the workplace. Employers will be required to treat each request individually, go through the required interactive process with each employee to determine if they have a qualifying disability and, if so, evaluate whether remote work or some other alternative reasonable accommodation can be provided without creating an undue hardship for the employer. As many employers know, this interactive process can be a very time-consuming and sensitive process involving input from the employee’s health care provider, a review of the employee’s essential job functions and work restrictions, and an evaluation of what, if any, potential reasonable accommodations may be available.  However, failure to engage in the interactive process can result in legal liability. Thus, even if an employer has reason to believe an employee doesn’t have a qualifying disability but just wants to work from home, the employer must be able to document that it went through the interactive process in good faith before reaching that conclusion and refusing to accommodate the employee with remote work, or some other alternative reasonable accommodation.  

So, stay tuned as we continue to monitor the status of SB 731 and whether or not it becomes law.