The COVID-19 pandemic had a lasting impact on an assortment of aspects of society, including how members of the American workforce executed their jobs. At the start of the pandemic, the American economy saw a dramatic shift in the workforce to remote work, exemplified by a peak of approximately 60% of paid full days worked from home in May 2020. As some employers push employees to make their way back into the office, the effects of COVID-19 on disability law concerning remote work accommodations are underscored.
Recent trends in court rulings reveal a decrease in the success rate of employers in cases where employers reject remote accommodation requests on the basis of disability accommodation. According to Bloomberg Law, employers prevailed in roughly 77% of decisions between June 2021 and June 2022, but since the end of June 2022 to the present day, this percentage has dropped to 42.4%. A recently decided case in the Eighth Circuit, Mobley v. St. Luke's Health Sys., Inc., 53 F.4th 452 (8th Cir. 2022), analyzed whether remote work was a reasonable accommodation. While the court did not ultimately rule for the employee, the court's analysis may give insight on how the courts will rule in future cases on whether remote work is a reasonable accommodation.
In Mobley, the employee was diagnosed with Multiple Sclerosis in 2016. After diagnosis, the employee, who, like other managers, was allowed to work remotely two days per week, requested to be able to have remote accommodations during flare-ups. The request was subsequently denied, and the employee was told that he could request to work remotely on a case-by-case basis, citing that he would need to be in person to supervise direct reports even though the majority of his direct reports worked remotely full-time. The employee later resigned for fear of being discharged because of his condition and sued the employer under the Americans with Disabilities Act of 1990 ("ADA") and state law. Although the court did not ultimately find for the employee, the court found that since the employer allowed the employee to work remotely two days a week, it showed that the employee could work remotely and still perform the job's essential function.
Additionally, in Waldrop v. Gwinnett County School Dist., 2023 U.S. Dist. LEXIS 90967, an unpublished opinion, the United States District Court for the Northern District of Georgia, Atlanta Division, addressed a denial of a request for remote work as a reasonable accommodation. In Waldrop, the employee, a staffing assistant, submitted a reasonable accommodation request to work remotely full-time due to being at risk of COVID-19 due to a rare genetic condition. The employer rejected this request, citing that working onsite was an essential function of the employee's job, but offered multiple additional accommodations, such as moving her workstation to a modular office location that had its own HVAC system, providing access to a restricted-use restroom, and allowing her to come to work early and leave early in order to avoid contact with others. The employee declined these accommodations, ended the interactive process between the two parties, and brought suit.
The court, ruling in favor of the employer, found that in this instance, working onsite was an essential job function, and because it was an essential job function, her requested accommodation was not reasonable. The court reasoned further that even if the employee's physical presence was not an essential job function, the employer could not be held liable under the ADA if the employer engaged in good faith with the employee and offered employee accommodations and the employee's actions caused a breakdown in the interactive process required by the ADA. While the courts ruled in favor of the employer in both of these cases, the reasoning of the courts may provide insight into how courts will rule in future cases. This trend begs the question: how should employers approach a qualified individual with a disability's request for remote work?
The ADA requires employers to make reasonable accommodations for qualified individuals with disabilities who are employees or job applicants, unless doing so would result in undue hardship. Reasonable accommodations can mean modifications or adjustments to the work environment that enable an individual with a disability to perform the essential functions of the job or that enable an individual with a disability to enjoy the equal benefits and privileges of employment as other similar employees without disabilities. A job duty is an 'essential function' when that duty is fundamental to the position. Courts, when deciding whether a function is essential to an employee's job duties, will take into account a variety of factors, including:
- The employer's judgment.
- The written job description during the hiring process.
- The amount of time spent performing the function.
- The consequences of not performing the function.
- The work experience of individuals who have worked or are currently working in a similar role.
The U.S. Equal Employment Opportunity Commission ("EEOC") provides guidance on reasonable accommodation when it comes to remote work. While the ADA does not mandate that employers offer remote employment, if employers do, they must give employees with disabilities an equal opportunity to engage in remote employment, and, in some circumstances, waive certain requirements for someone to work remotely. The EEOC uses the following scenario as an example of when a requirement might need to be waived: the employer might have a policy that prohibits employees from working remotely until one year has passed since the hiring date, but "if a new employee needs to work at home because of a disability and the job can be performed at home, then an employer may have to waive its one-year rule for this individual." Additionally, the EEOC further clarified that allowing an employee to work remotely may fall under the definition of modifying the workplace environment.
When making a choice about whether an employee with a disability should be granted the option to work remotely and determining the suitable frequency for this arrangement, the employer should factor in the subsequent considerations. First, an employer is not typically required to choose remote work as a reasonable accommodation. The employer is free to choose any effective reasonable accommodation, such as modifying equipment, altering work schedules and policies, or making the workplace more accessible (by adding a ramp). Second, the employer may not have to allow the employee to work full-time remotely. The employer only needs to schedule the employee to work at home as much as the employee's disability requires it. The employee could be scheduled to work remotely one day a week, a few half-days a week, or for a set period of time in the case of the employee recovering from surgery related to the disability.
When evaluating a remote work accommodation request from a qualified employee, the employer should contemplate the ensuing questions:
- what are the employee's essential job duties;
- can those job duties be performed remotely; and
- are there any other employees without disabilities in a similar role that are able to work remotely?
First, as mentioned above, if other employees in similarly situated roles are able to work remotely, then the employer will likely need to approve the accommodation. Second, unless those essential job duties must be performed in person in order for the employee to successfully perform their job role, the employer should not outright reject the request. In cases where the employer wishes to keep the employee working in-person, at least part of the time, the employer should instead offer either a hybrid remote work plan or alternative reasonable accommodations. In closing, employers should exercise caution when deciding whether to grant a qualified employee with a disability's request for a remote accommodation in light of recent trends in the courts in order to avoid failure-to-accommodate cases.
Gordon & Rees would like to acknowledge Atlanta Summer Associate, Jack Chambers, who served as the primary author of this article.