WASHINGTON — COVID-19 changed many things for employers and employees, but the Americans with Disabilities Act remains the same, Jillian Cutler, partner at the employee-side firm Frank Freed Subit & Thomas told attendees at the American Bar Association’s Section of Labor and Employment Law conference Nov. 11.
“During COVID, there’s been a sense of getting away from some of the core, basic standards of the ADA,” Cutler said. “It’s the same law that has always applied.”
It's a reminder that may serve organizations well as they move into the next phase of the pandemic, one in which many will be calling employees back to the office. A recent Resume Builder survey found that 90% of employers would require their workers to return to in-person work at least part of the week in 2023.
Cutler said she has seen plenty of organizations exhibiting what she called “flexibility fatigue,” with exasperated managers demanding more boundaries and structure to remote and hybrid work. “To a certain extent, that’s a very human reaction,” Cutler said, yet even if managers are ready to shake things up, she offered a word of caution: “Don’t forget that the duty to accommodate continues.”
That’s because flexible work is still a hot topic in the ADA context. Courts continue to weigh, for example, whether remote work arrangements, even for part of the workweek, could be a reasonable accommodation for workers with disabilities. Remote work may benefit workers with a disability or chronic illness by allowing them to better contribute to company processes, according to the results of a 2020 GitLab survey.
On the other hand, an accommodation need not necessarily take the form of a hybrid or remote option, said Ryan Leach, deputy general counsel at the Massachusetts Teachers Association, even where employees have a preference for such arrangements.
“We have to look at what best serves our organizations,” Leach said. “You have to be continuously evaluating whether an accommodation is still necessary or required.”
Even in an office environment that may otherwise be conducive to flexible work arrangements, hybrid or remote work might not be the default accommodation. “We have people that meet others in person,” Leach said. “A hybrid accommodation doesn’t work in that scenario.”
But remote work accommodation requests also have become more difficult for employers to sidestep, said Joyce Walker-Jones, senior attorney advisor at the U.S. Equal Employment Opportunity Commission and one of the authors of the commission’s oft-cited Q&A technical assistance document on COVID-19 and federal workplace anti-discrimination laws.
“Prior to the pandemic … it was really hard to grant those [requests] because we really had not seen remote work done successfully,” Walker-Jones said. “Now, with the pandemic, it’s not so much the case.”
Walker-Jones pointed attendees to a federal judge’s decision in Williams v. Maryland Department of Health, a case in which an employee sued his employers for failure to accommodate, discrimination and retaliation under the Rehabilitation Act of 1973, the ADA’s public-sector counterpart. The judge held in favor of the employer, finding it was able to demonstrate that the employee could not perform the essential functions of his job remotely.
The case demonstrates that the basic principles of the ADA, including the interactive process and assurance that an employee will be able to complete the essential functions of a given job with an accommodation, remain the same, Walker-Jones said. And where possible, employers can be creative in providing effective accommodations that allow an employee to perform essential functions, she added, even if an accommodation isn’t exactly what the employee prefers.
There are a number of factors to consider when identifying essential functions, according to Tony W. Torain II, shareholder at management-side firm Polsinelli. First, employers might consider what the purpose and reason of a given job is, and where in-person or on-site work fits into the equation. That requirement could look very different for a welder compared to someone in a more general role, Torain said.
Other considerations include how long an employee spends performing a particular function, whether expressed as a percentage or a share of the employee’s time; how the employee would backfill for a function if were to be removed from the employee’s duties; whether the duty is specialized; and the history of employees in the same position. “The EEOC will give us more credit and weight as employers if we treat those with the same essential functions the same,” Torain said.
Employers need to train managers and HR staff on the subject, as they may incorrectly assume that an employee must come back to the office when that’s not necessarily the case, said Nikki Pollard, in-house counsel at Northstar Anesthesia. Corporate leaders, too, may make the mistake of viewing attendance at strategic retreats and similar in-person events as an essential function. “We’re getting pushback even to the idea of in-person meetings once a month,” Pollard said.
Additionally, employees who are immunocompromised may be hesitant to return to the office even as case numbers subside. That is one area where employers need to be cautious, Cutler said, particularly if such an employee has been performing well while remote.
“I think that the analysis of whether remote work is a reasonable accommodation has forever changed,” she added. “I don’t think we’ll ever look at it the same because we have this collective experience … An employer can’t ignore that, a court can’t ignore that and a jury can’t ignore that.”