There is no doubt that remote work is here to stay. To what extent and in what form, however, are open questions. This is particularly true with the unexpected increase in COVID-19 infections this summer, resulting from the Delta variant. We may need, for now at least, to simply accept an ongoing level of uncertainty with indications of other variants on the horizon.
Until recently, many employers were predicting that almost two in five employees would be working remotely at the end of this year. Compare this with the 57% who currently work remotely and it is clear that most employers envisioned a noticeable decrease in remote work. This assessment was based on the assumption that the pandemic would be largely an afterthought as 2021 comes to a close.
Remote work will remain the norm in 2021 and beyond
High-profile employers have recently pulled back some detailed plans for bringing a certain number of remote workers back to the office. For example, Facebook has now delayed any significant return to office plans until 2022. Similarly, Google, Twitter, and others have put aggressive plans to “return to normal” on hold.
At this point, it appears that all of us will have to take a wait-and-see approach, settling into a more permanent remote versus office equilibrium.
The world before COVID-19
Before the COVID-19 outbreak, a report by the Pew Research Center found that only 7% of U.S. employees were able to take advantage of a “flexible workplace” benefit, or remote work. As one might expect, these employees were primarily well-paid managers and other white-collar professionals.
As every employer was required to understand during pre-pandemic America, the Americans with Disabilities Act (“ADA”) in general prohibits employers from discriminating against employees on the basis of a disability. This term is more clearly defined by the ADA as “a physical or mental impairment that substantially limits one or more major life activities….”.
Once it is determined that an employee has a covered disability, the ADA further requires employers to provide employees with disabilities with a “reasonable accommodation” to account for that disability and enable the employee to perform the job. Importantly for both employer and employee, the ADA does not require employers to provide an accommodation that would impose “an undue hardship on the operation of the business of (the employer)”.
In fact, before the pandemic, there was an ongoing debate about whether working remotely itself was a “reasonable accommodation” under the ADA. There was a level of agreement between the EEOC and courts addressing the question that it was not a reasonable request for an employer to agree to remote work for an employee with disabilities if an employee’s job required “face-to-face interaction and coordination of work with other employees,” “in-person interaction with outside colleagues, clients, or customers,” and/or “immediate access to documents or other information located only in the workplace.”
COVID-19 has changed...everything
All of a sudden, with COVID-19, it has not only became reasonable, but a true business necessity, to accommodate virtually everyone, and certainly people with disabilities, who can work remotely. And with this awakening, employees quickly settled into the new remote world, adapting quickly to eliminating commutes, and even moving to less costly locations.
It is not going to be easy to return to previous restrictions upon, and attitudes toward, remote work. There will always be a certain portion of employees worried about exposing themselves to the virus, if not for themselves, for family members with particular vulnerability to the virus. There are other employees with more focused concerns, such as chronic health conditions, which could make them more likely to incur serious health problems with the virus. Finally, as there were before the pandemic, there will always be employees and others arguing that working remotely makes time more, or at least, equally, productive.
How does the ADA impact life with COVID-19?
In a way, the pandemic has turned the ADA on its head and employers will now be asked to view employees through a different lens. At its core, employers need to know how the ADA will now impact plans to return to the traditional workplace. If and when employees return to work, should employers now expand the duty to accommodate employees who want to continue working remotely based on COVID-19 concerns? Alternatively, if employees with disabilities do return and demand on-site accommodations based on the impact of the coronavirus, how do employers respond?
The EEOC has attempted to answer these questions, at least in part. In September 2020 and with updates in May 2021, the EEOC offered some guidance. The basic position taken by the EEOC, without specific ADA factors at play, is that employers are not obliged to accommodate employees who choose to work remotely because of a fear of contracting COVID-19 or bringing the virus home to a family member. But, where an employee’s concern about returning to work is based upon an underlying disability, this answer may change.
Though the EEOC has not answered these questions definitively, its notice “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act” provides a comprehensive review of the EEOC’s thinking on these issues and is a must-read for employers. The EEOC has provided useful guidance, including:
- When an employer does reopen the workplace and recalls employees, the employer is not automatically required to permit remote work as a reasonable accommodation to every employee with a disability who might request this as an accommodation pursuant to the ADA. Rather, in assessing the request, an employer is permitted to deny a request if there is no specific disability-related limitation that requires remote work.
- When there is a disability-related limitation that accompanies a request for remote work, an employer may still effectively address the request with another form of reasonable accommodation at the workplace, if such exits.
- Where an employer has permitted remote work due to COVID-19 and during the workplace closure has excused an employee from performing one or more essential functions, a request following a workplace reopening to continue working remotely, does not need to be granted where the accommodation would require a continuation of the essential function removal. Despite COVID-19, the EEOC has not altered the basic ADA requirement that an employer does not need to eliminate an essential function as an accommodation for employees with disabilities.
Conclusion
While it is apparent that with the pandemic, the work world has overall become more accommodating to remote work and almost certainly discovered many ways to expand these opportunities for people with disabilities, certain fundamental ADA requirements remain in place.
The sudden swing to remote work that followed COVID-19 does not mean that employers are now locked into necessary pandemic-related changes to a job’s essential functions, that remote work will always be a reasonable accommodation, or that remote work never poses an undue hardship.
These questions and the answers will continue to evolve as we all come to grips with a very changed world.
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