By: Jim Geary
INTRODUCTION
What factors do courts consider to determine if a remote-work accommodation request is reasonable under the Americans with Disabilities Act (“ADA”)? The ADA requires all employers to provide reasonable accommodation to qualified individuals unless doing so would be an undue burden.[1] This did not change throughout the COVID-19 pandemic. However, due to the need to avoid in-person operations during the pandemic for public health reasons, employees and employers’ experience with remote work has increased dramatically. [2] This experience has informed employees and employers on what work functions can adequately be done remotely and, by extension, whether and when remote work is reasonable for ADA purposes.[3] Given the advances in information technology and employer knowledge of remote-work capacities, the EEOC (as the enforcer of the ADA) should offer guidance to employers and courts to be more permissive in granting remote-work accommodations and implement stricter enforcement in remote-work accommodation cases.
LEGAL BACKGROUND
Title I of the Americans with Disabilities Act of 1990 (“ADA”) requires employers to provide reasonable accommodation to qualified individuals with disabilities unless providing such accommodation would cause an undue burden for the employer.[4] An accommodation is reasonable if it “seems reasonable on its face,” meaning it allows an individual to perform all essential functions of a position and meets the needs of the individual.[5] An accommodation is an undue burden if implementation would cause “undue hardship” to the employer.[6] The ADA does not provide an exhaustive list of factors a court should follow to determine what is reasonable or an undue burden. Still, courts have relied upon several factors to make this determination.[7] One such pertinent factor is the essentialness of in-person work and supervision.[8]
DISCUSSION
For a telework accommodation to be reasonable, the requesting employee must be able to perform all essential functions of the job.[9] The employer usually defines essential functions in the employee’s job description.[10] If not, an employer’s view of what is essential is considered but not dispositive.[11] It is often contested whether or not in-person work or direct supervision is an essential function of many jobs.[12] In Vande Zande, the 7th Circuit held that “most jobs” involved a level of teamwork and supervision such that employees could not successfully perform essential functions satisfactorily; however, the court had the foresight to note that this position would “no doubt change as communications technology advances.”[13] Indeed, during the COVID-19 pandemic, the Eastern District of Virginia held in Jordan that a school principal did not need to be in-person to perform the essential functions of her job after successfully performing them while the school temporarily operated on a 100 percent virtual basis.[14]
Previous success working from home can be a positive factor in a reasonableness determination.[15] The District Court of Massachusetts found that the employee could prove by a preponderance of the evidence that their requested accommodation was reasonable for an ADA failure-to-accommodate claim, where an employee with asthma was able to provide documentation from their supervisor reflecting their success performing essential functions and had a history of working satisfactorily from home for four months.[16] Similarly, a manager’s reasonable accommodation claim survived a motion for summary judgment where his employer viewed in-person supervising as essential but where his team excelled while working remotely during the pandemic.[17] In another example, an employee with lung dysfunction’s request for remote work approval was sufficient to survive a motion to dismiss where he claimed he had performed all essential functions of the job while teleworking during the pandemic despite his employer claiming that being on-site was an essential function.[18]
CONCLUSION
Throughout the pandemic, the law governing reasonable accommodations did not change. However, employees, employers, and courts’ views of what can reasonably be done from home have changed. In light of this shift, the EEOC should offer guidance to employers and courts to be more permissive in granting remote work accommodations and implement stricter enforcement in remote-work accommodation cases.
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[1] 42 U.S.C. §§ 12101-12117, 12201-12213.
[2] According to the American Community Survey, the number of people primarily working from home increased from 5.7% in 2019 to 17.9% in 2021. U.S. Census Bureau, The Number of People Primarily Working From Home Tripled Between 2019 and 2021 (Sept. 15, 2022), https://www.census.gov/newsroom/press-releases/2022/people-working-from-home.html.
[3] Early case law held that “most jobs” required such a degree of teamwork and supervision that they couldn’t be performed remotely until communication technology advanced substantially. Vande Zande v. State of Wis. Dep’t of Admin., 44 F.3d 538, 544 (7th Cir. 1995).
[4] 42 U.S.C. §§ 12101-12117, 12201-12213.
[5] US Airways, Inc. v. Barnett, 535 U.S., 122 S. Ct. 1516, 1523 (2002).
[6] 42 U.S.C. § 12112 (b)(5)(A) (defining “undue hardship” based on factors assessing cost and difficulty).
[7] As one of the ADA’s enforcing agencies, the Equal Employment Opportunity Commission provides guidance on possible factors to consider for undue hardship: nature and cost of accommodation; financial resources, number of employees, and effect on resources of accommodating facility; type of operation of employer and structure of workforce; etc. See ADA, Rehabilitation Act, 29 CFR Part 1630, 29 CFR Part 1614, UNDUE HARDSHIP ISSUES.
[8] ADA, Rehabilitation Act, 29 CFR Part 1630, 29 CFR Part 1614, UNDUE HARDSHIP ISSUES; see alsoa
[9] 42 USC § 12111; see also 29 CFR § 1630.2(o)(1).
[10] Written descriptions of the job prepared before interviewing are considered evidence of the job’s essential functions. 42 U.S.C. § 12111(8). Vande Zande v. State of Wis. Dep’t of Admin., 44 F.3d 538 (7th Cir. 1995) (holding that in-person work and supervision is an essential function for most jobs, subject to changes in information technology).
[11] 42 U.S.C. § 12111(8); see also Gentile v. Cnty. Of DuPage, 583 F. Supp. 3d 1167, 1175 (N.D. Ill. 2022) (an employer’s claim that on-site work was essential was outweighed by evidence of prior successful telework).
[12] Compare Vande Zande v. State of Wis. Dep’t of Admin., 44 F.3d 538 (7th Cir. 1995) (agreeing with employer that in-person attendance was an essential function for a job requiring close supervision and teamwork) with Jordan v. Sch. Bd. of City of Norfolk, No. 2:22CV167, 2022 WL 16835868 (E.D. Va. Nov. 9, 2022) (disagreeing with employer that in-person attendance was an essential function for a school principal whose administrative, managerial, and supervisory work could successfully be done remotely).
[13] Vande Zande v. State of Wis. Dep’t of Admin., 44 F.3d 538, 544 (7th Cir. 1995).
[14] Jordan v. Sch. Bd. of City of Norfolk, No. 2:22CV167, 2022 WL 16835868 at *2, *7 (E.D. Va. Nov. 9, 2022).
[15] However, an employer does not have to approve telework for every employee with a prior history of working from home during the pandemic if this history resulted from a sustained relaxation or removal of essential functions due to public-health necessity. ADA, Rehabilitation Act, 29 CFR Part 1630, Question 4; see also Frazier-White v. Gee, 818 F.3d 1249, 1255–57) (11th Cir. 2016) (holding if accommodation results in sustained reduction of duties then it is not reasonable).
[16] Peeples v. Clinical Support Options, Inc., 487 F. Supp. 3d 56, 63-64 (D. Mass. 2020).
[17] Lewis v. T-Mobile USA, Inc., No. 1:21-CV-00224-GZS, 2023 WL 315695 (D. Me. Jan. 19, 2023).
[18] Gentile v. Cnty. Of DuPage, 583 F. Supp. 3d 1167, 1175 (N.D. Ill. 2022).