Employer arguments against telework as a disability accommodation could be undercut now that coronavirus-related “social distancing” is forcing companies to allow many employees to work from home, legal observers say.
Before the spread of Covid-19, the disease caused by the new coronavirus, courts for the most part sided with employers that say telework isn’t a “reasonable accommodation” because it prevents employees from performing essential job duties that include in-person attendance. But if mass telework from the pandemic shows that face-to-face interaction isn’t actually necessary to perform those duties, workers may be able to counter that business argument, lawyers say.
“In the context of the current crisis, we are seeing employers in many cases insist their workers telecommute for all of our safety,” said Ruth Colker, a disability law professor at The Ohio State University Moritz College of Law. “What we don’t know is if the workers are performing the essential functions of their jobs.”
Courts have increasingly confronted this question as technology makes working remotely easier, and at least 70% of employers offer it as an option.
After the pandemic ends, however, companies could still argue that telework is an unreasonable accommodation by showing how their business was harmed by workers not being there in person, attorneys said.
“Our idea of work from home is likely to expand,” said Michael Waterstone, law professor at Loyola Law School in Los Angeles. “Over time, employers will learn about what truly is possible. Whether that will help an individual win an argument, I think that progress is likely to be incremental rather than dramatic.”
The Americans with Disabilities Act and the Rehabilitation Act both outlaw employer bias based on disabilities and require reasonable accommodations for disabled workers.
In legal battles, employers generally have won the majority of rulings over whether they can reject workers’ requests for telework as a disability accommodation, according to a 2019 Bloomberg Law analysis. With the new coronavirus, this could change.
“This is an unprecedented situation,” Waterstone said. “We are going to learn a lot about working from home, and that will help employers and judges interpret the ADA.”
But even if the current state of mass telework helps bolster workers’ accommodation claims, it could be a double-edged sword. While someone with an autoimmune deficiency may benefit from avoiding the office every day, workers with hearing or visual impairments may find it more difficult to telework.
Many factors go into whether employers must grant accommodations to workers with disabilities, said Cheryl Sabnis, a King & Spalding partner in California. She said in the current environment, employers are responding to a public health crisis and must make sure people are avoiding crowds and not further exposing the population.
“Down the line will there be an argument for home work because it’s now a proven reasonable accommodation?” Sabnis asked. “I do expect that we could see those arguments and there will be proof that there may be ways to innovate how to operate a workplace.”
Yet, she said, the outcome of the current crisis could go both ways. It could see businesses more readily embrace telework, and it could underscore the benefit derived from employees coming together to work in the same place. Courts, recognizing the unique circumstances of our current times, could further side with companies that say remote work isn’t a reasonable accommodation.
Previously, the U.S. Court of Appeals for the Eighth Circuit confronted whether an employer should accommodate a Minnesota man who wanted to work from home because of a near-fatal bout with flesh-eating bacteria. The federal appeals court blessed the city’s denial of telework and said an employee’s preference shouldn’t be covered.
The Equal Employment Opportunity Commission, which enforces workplace anti-discrimination laws, has argued that telework can be a reasonable accommodation. The agency won a landmark pro-teleworking decision in a case involving
But courts sometimes have ruled in favor of employees, and it appears to depend on the type of request. Another three-judge panel from the Sixth Circuit upheld a jury verdict in favor of a Memphis Light, Gas & Water lawyer who was denied remote working privileges after a doctor placed her on modified bed rest because of pregnancy complications.
Telework requests typically are determined on a case-by-case basis, said Tracy Billows, a Seyfarth Shaw partner in Chicago. These decisions already are carefully analyzed, but the pandemic could reveal that telework isn’t sustainable on a permanent basis. She said it could push employers to invest in technology or realize more is needed to allow remote work.
While workers’ attorneys may use mass telework as a tool to undercut the argument that physical presence is an essential function, other factors still will likely be used to decide whether the accommodation is reasonable. Workplaces that handle confidential information, for example, will have a hard time allowing telework.
“It could work both ways,” Billows said. “We’ll see if deadlines are missed and quality control issues fall through the cracks. They are trying to find a reasonable, flexible situation now and still keep their operations moving.”