A COVID Silver Lining? How Telework May Be a Reasonable Accommodation After All

by Baylee Kalmbach

Associate Member, University of Cincinnati Law Review Vol. 90

Notes and Comments Editor, University of Cincinnati Law Review Vol. 91

Editor’s Note: This article was originally published in Volume 90, Issue 4 of the University of Cincinnati Law Review. Click here to read the article in full.

I. Introduction

Since December 2019, the Coronavirus disease (“COVID-19”) has profoundly altered human life.¹ The dramatic effects of the pandemic have especially manifested around workplace procedures, workers’ rights and protections, and the laws that create and enforce such protections.² For instance, before the pandemic, 20% of employees whose job requirements allowed them to work from home did so, and this number more than tripled to 71% in December 2020 as a result of COVID-19 and stay-at-home mandates.³ Though these orders were initially intended to slow the spread of the disease, as the need to return to in-person interaction increases, conversations and procedures demanding protections for people with pre-existing impairments persist.⁴ In fact, the Equal Employment Opportunity Commission’s New York Deputy Director, Judy Keenan, reported that, “workers are filing more charges alleging their employers failed to accommodate their disabilities during the pandemic than any other allegation tied to COVID-19.”⁵ While workers are slowly being integrated back into the office and in-person jobsites, the question remains whether employers need to allow employees with disabilities to telework in order to accommodate their impairments.

Under the Rehabilitation Act of 1973 and the Americans with Disabilities Act, employers are required to provide reasonable accommodations to qualified individuals with disabilities, unless those accommodations would cause undue hardship.⁶ In this context, an accommodation is any modification in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal job opportunities.⁷ Pre-pandemic, courts were split on whether employers needed to allow employees to work from home in order to accommodate their disabilities.⁸ However, the majority of federal circuits tended to rule in favor of employers by declining to recognize telework as reasonable.⁹ In part, this is because when federal anti-discrimination laws were enacted, technology did not allow for remote work as an option for workers to successfully perform their essential job functions.¹⁰ Employers are not required to alter the main objectives of a disabled individual’s employment solely because of her impairment; therefore, this line of ruling logically followed.¹¹

As modern technology has greatly advanced the availability for employees to work-from-home (and the COVID-19 pandemic required this of many workers) teleworking as a reasonable accommodation will be a critical theme in post-pandemic litigation.¹² As the courts revisit this issue, employers likely carry a heavy burden in proving that allowing their employees with disabilities to telework will impose undue hardship on their business and operations.¹³ Alternatively, because teleworking might require excusing these employees from performing the essential functions of their positions,¹⁴ courts could instead rule that teleworking is not a required accommodation, even post-pandemic.

This Comment examines whether employers are legally required to allow their disabled employees to telework as a reasonable accommodation in light of COVID-19 and the necessary and timely changes the pandemic caused for employment and anti-discrimination law practices. Section II of this Comment will discuss Title I of the Americans with Disabilities Act (“ADA”) and its enforcement by the Equal Employment Opportunity Commission (“EEOC”). Additionally, Section II will discuss the pre-pandemic circuit split on working from home as a reasonable accommodation as well as telework cases that were decided mid-pandemic.

Section III will argue why qualified disabled people should be entitled to the option of telework where practicable. It will address the types of disabilities that will be protected by offering telework accommodations as well as illustrate how the long-term effects of COVID-19 will be considered a disability under the ADA. Further, it will explore how the pandemic will impact the factors courts analyze when presented with failure to accommodate claims. Specifically, employers whose employees successfully teleworked during the pandemic will have a difficult time proving both that in-person attendance is an essential function and that telework imposes undue hardship. Section III will conclude by illustrating how the Equal Employment Opportunity Commission has responded to COVID-19, as well as outline the facts and predict the outcome of its first COVID-telework lawsuit.

Cover Photo by Chris Montgomery on Unsplash

Baylee Kalmbach

Baylee grew up in Erie, MI on the Lost Peninsula. She is an avid boater, dog mom, and Oakland Raiders fan. Passionate about disability rights and employment law, she chose to write her Comment on COVID-19's impact on the right to telework as a reasonable accommodation under the ADA. For her various blog posts, she wrote about taxing requirements for third-party payment applications, medical rationing during the pandemic, racism in the NFL, and genetic genealogy's impact on criminal suspects' constitutional rights. She hopes to become a litigator and educate people on forward-thinking business and employment practices. Read Baylee's published Student Comment, A COVID Silver Lining? How Telework May Be a Reasonable Accommodation After All, at the hyperlink below.

References

1
Coronavirus disease (COVID-19), World Health Organization, https://www.who.
int/health-topics/coronavirus#tab=tab_1 [https://perma.cc/XZ67-QA62] (last visited Dec. 2, 2021).
2
Tom Starner, How COVID-19 has ‘fundamentally changed employment’, Human Resource Executive (Sept. 7, 2020), https://hrexecutive.com/how-covid-19-has-fundamentally-changedemployment/ [https://perma.cc/QRP6-KDA8].
3
Kim Parker, Juliana Menasze Horowitz & Rachel Minkin, How the Coronavirus Outbreak Has –and Hasn’t – Changed the Way Americans Work, Pew Research Center (Dec. 9, 2020), https://www.pewresearch.org/social-trends/2020/12/09/how-the-coronavirus-outbreak-has-and-hasntchanged-the-way-americans-work/ [https://perma.cc/675R-9N9Y].
4
Chad Young, COVID-19: Federal Disability-Specific and Other Related Guidance, Disability Employment Policy: The Council of State Governments (Aug. 13, 2021), https://seed.csg.org/covid-19-federal-disability-specific-other-related-guidance/ [https://perma.cc/P3CEFC5P].
5
Braden Campbell, Pandemic Fueling Disability Accommodation Claims, Law 360 (May 27, 2020, 10:21 PM), https://www.law360.com/articles/1277246 [https://perma.cc/Q987-4AZR].
6
The Rehabilitation Acts of 1973 and 1974, and the Americans with Disabilities Act of 1990,
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, https://teamster.org/rehabilitation-acts-1973-and-1974-and-american-disabilities-act-1990/ [https://perma.cc/G386-SUJ6] (last visited Dec. 1, 2021).
7
Accommodations, U.S. Dep’t of Labor, https://www.dol.gov/agencies/odep/programareas/employers/accommodations [https://perma.cc/DL9E-4CHD] (last visited Dec. 1, 2021).
8
Vande Zande v. Wis. Dep’t of Admin., 44 F.3d 538, 544 (7th Cir. 1995). This case identified the pre-2008 ADA Amendments circuit split, with the majority view that “an employer is not required to allow disabled workers to work at home, where their productivity inevitably would be greatly reduced.” Id. at 545.
9
Id. at 545.
10
Id. The court acknowledged that technology as it existed in 1995 generally did not allow employees to perform their jobs at home, but that advances in technology in the future will “no doubt change” cases in the future. Id. at 544.
11
Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the ADA, U.S. Equal Emp’t Opp. Comm’n (Oct. 17, 2002), https://www.eeoc.gov/laws/guidance/enforcementguidance-reasonable-accommodation-and-undue-hardship-under-ada – intro [https://perma.cc/Y5RVNKTZ].
12
See Campbell, supra note 5.
13
Erin Woo, Work at Home or the Office? Either Way, There’s a Start-Up for That, The New York Times (Jul. 6, 2021), https://www.nytimes.com/2021/07/06/technology/hybrid-workstartups.html?referringSource=articleShare [https://perma.cc/2H9Q-23L7].
14
See Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the ADA, supra note 11.

I. Introduction

Author

References