Workplace Responses to COVID-19 Affirm Telecommuting as a Reasonable Accommodation

The Coronavirus Pandemic has forced organizations to rethink their workplace practices and to rely on new technology and infrastructure for working remotely. Although telecommuting was increasing in popularity before the pandemic, many employers did not consider it to be a valid option until it became an absolute necessity. Months of quarantine and social distancing has taught us that organizations can thrive even when its employees cannot gather under the same roof. Video conferencing has replaced in person meetings, and as always, email, instant messaging, and shared drives have allowed coworkers to collaborate on projects. Most importantly, more organizations now have the resources to operate remotely than ever before.

The Regulatory Review published the article, “The ADA, Telework, and the Post-Pandemic Workplace,” by Brandy L. Wagstaff and Jacob Quasius, which asserts that pandemic practices have proven telecommuting to be a reasonable accommodation for employees with disabilities. Under the ADA, employers must grant accommodations that will allow a qualified individual with a disability to perform a position’s essential functions so long as doing so would not cause undue hardship to the organization. Claiming that “telework is now more prevalent and successful than ever before,” the authors urge employers and the EEOC to reexamine the assumption that telecommuting would bring undue hardship to particular organizations.

Although the EEOC recognizes telecommuting as a potentially reasonable accommodation, many employers successfully argue against the practice. Common employer concerns include the perceived threat of telecommuting to result in a lack of supervision, efficiency, or essential face to face communication. The article cites a recent analysis of court decisions which 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.” In light of a successful shift to telework in the Global Pandemic, this statistic may change.

Court decisions are beginning to recognize the right of individuals with disabilities to use telecommuting as an accommodation. An example would be Boltz v. United Process Controls, in which, according to Wagstaff and Quasius, a federal district court in Ohio emphasized that “evidence of prior remote management or existing telework infrastructure may preclude a court from granting summary judgement for an employer.” Wagstaff and Quasius urge the EEOC to update its telework guidance to iterate that employers who successfully used telecommuting for similar positions during the pandemic will be unable to successfully refuse the accommodation by claiming undue hardship. Since telework has been successfully implemented during the COVID-19 pandemic, it may remain an accommodation option for employees with disabilities whose rights are confirmed by the Americans with Disabilities Act.