The ADA, Telework, and the Post-Pandemic Workplace

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The EEOC should update its guidance to encourage employers to provide telework as a reasonable accommodation.

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Although the pandemic has made the world a bit smaller for most able-bodied individuals, for many people with disabilities, the pandemic has made the world a more accessible place.

With the increased ability to telework, attend classes remotely, schedule telehealth visits, engage in online social opportunities, and order groceries and prescriptions delivered to their doorstep, individuals with disabilities are now widely accommodated in ways that previously seemed impossible. Many people are holding out hope that this more accessible society remains when the pandemic subsides.

In particular, the pandemic has made clear that telework is now more prevalent and successful than ever before—a development that should alter how we look at telework as a “reasonable accommodation” under Title I of the Americans with Disabilities Act (ADA).

Under the ADA and the regulations implementing its requirements, “reasonable accommodations” are “modifications or adjustments to the work environment,” or to the manner in which a position is customarily performed, that allow an otherwise qualified individual with a disability to perform the position’s essential functions. This may include job restructuring, the acquisition or modification of equipment, opportunities to telework, and other similar accommodations—such as changing an office’s “no pets” policy to accommodate service animals. A covered employer is required to provide a reasonable accommodation to an otherwise qualified individual absent “undue hardship.”

In light of pandemic-related developments, the U.S. Equal Employment Opportunity Commission (EEOC) should update its current regulatory guidance on telework to make it still clearer that such offsite work can count as a reasonable accommodation.

Even pre-pandemic, telework was expanding. A recent study found that 37 percent of jobs in the United States can be performed entirely at home, bearing in mind significant variation across cities and industries. An earlier study revealed that 70 percent of employers offered teleworking on some basis and almost a quarter of employers allow employees to telework full-time.

When the United States began responding to the pandemic in March and April of this year, about half the American workforce was working from home, more than double the number of people who worked from home at least occasionally in 2017 through 2018. The pandemic forced employers to invest in the technology and management practices necessary to operate a tele-workforce—infrastructure now widely in place.

Although growing pains and various downsides to telework persist, employers are noticing that remote work can succeed across many industries. Many employers plan to continue allowing telework in some form even after the pandemic, with some considering hybrid models.

The EEOC’s regulatory guidance on telework states that “allowing an employee to work at home may be a reasonable accommodation where the person’s disability prevents successfully performing the job on-site and the job, or parts of the job, can be performed at home without causing significant difficulty or expense.”

When determining whether a job can be done at home, the guidance provides several factors that employers should consider, including whether any of the following apply: the employer can adequately supervise the teleworking employee; the job requires equipment or tools that cannot be replicated at home; the job requires the employee to have face-to-face interactions and coordination with colleagues, clients, or customers, and those interactions can or cannot be effectively replicated while teleworking; or the position requires the employee to have immediate access to documents or other information located only in the workplace.

Despite the EEOC’s recognition that telework is a reasonable accommodation in many instances, employees seeking this accommodation in court have had mixed results. A recent analysis of decisions found that courts ruled in favor of employers in 70 percent of cases, while courts only determined that telework could be considered a reasonable accommodation about 30 percent of the time. Judges often deny telework accommodation requests at the summary judgment stage of litigation, where their views are influenced by their own exposure to telework. Furthermore, even though today’s judges are less likely to consider telework innately unreasonable, courts remain skeptical of allowing telework as a reasonable accommodation in specific cases before them.

Courts defer heavily to employer concerns about telework, placing substantial weight on the importance of employee-supervisor relationships and face-to-face interactions with clients, customers, and colleagues. For example, in Credeur v. Louisiana, the U.S. Court of Appeals for the Fifth Circuit held that an attorney could not perform the essential functions of the job while teleworking because it was difficult to oversee the attorney’s work and the position required personal interaction and coordination with other employees. Other courts have found employers’ concerns surrounding productivity and effectiveness particularly persuasive. In Morris-Huse v. Geico, a federal district court in Florida found that in-person attendance was an essential function of an employee’s job, deferring to the employer’s concerns about the employee’s ability to supervise others, provide immediate feedback, and monitor calls in real time.

Finally, relying heavily on the EEOC’s telework guidance, the U.S. Court of Appeals for the Sixth Circuit determined that regular and predictable onsite attendance was “essential” for an employee’s job in EEOC v. Ford Motor Company. The court noted that many of the employee’s primary duties required onsite attendance and that prior issues during telework demonstrated that telework was not a reasonable accommodation. Furthermore, the court rejected the argument that general technological advancements justify the employer reconsidering telework as a reasonable accommodation. Rather, to reconsider telework, the court said that the record must show the “highly interactive job” can now be performed at home effectively due to advances in technology.

The Sixth Circuit, however, has since noted in Hostettler v. College of Wooster that “full-time presence at work is not an essential function of a job simply because an employer says that it is.” Furthermore, a federal district court in Ohio emphasized in Boltz v. United Process Controls that evidence of prior remote management or existing telework infrastructure may preclude a court from granting summary judgment for an employer.

Post-pandemic, cases like Hostettler and Boltz indicate that employers who argue that telework accommodations create undue hardships will face a more difficult hurdle when those employers successfully implemented telework during the pandemic and retain the infrastructure to support telework. Employees, therefore, may be more likely to succeed post-pandemic in persuading a court that telework accommodations are reasonable under EEOC guidelines.

But employees should not have to litigate these claims to secure reasonable accommodations. Now is the time for the EEOC to update its telework guidance and recognize that the analysis has shifted due to technological developments that occurred both before and during the pandemic.

Specifically, with the development and successful use of videoconferencing and other virtual tools, the guidance factors that used to weigh against telework—such as the ability to supervise, the availability of technology or equipment, and the need for face-to-face interaction and coordination with colleagues—no longer create undue hardships for many employers.

Updated EEOC telework guidance should emphasize that employers will not successfully present an undue hardship defense if the employee proffers evidence that employees in the same or similar positions effectively teleworked during the pandemic. Although barriers to successful telework still exist in some instances, updated guidance would not affect the outcomes in those instances. It remains important, however, for the EEOC to recognize the shifting telework landscape and provide updated guidance to employers navigating their post-pandemic obligations under the ADA.

Brandy L. Wagstaff

Brandy L. Wagstaff is an adjunct professor at George Mason University Antonin Scalia Law School and an attorney advisor at the U.S. Department of Justice, Civil Rights Division. The views discussed in this essay are entirely hers and not those of the Justice Department.

Jacob Quasius is a third-year student at George Mason University Antonin Scalia Law School.