Business team telecommuting in a video conference.

The Impact of Telecommuting During the COVID-19 Pandemic on ADA Accommodation Cases

By Douglas Lipsky

Although the Americans with Disabilities (ADA) requires employers to make reasonable accommodations for disabled employees so that they can perform their job duties, the courts have generally been reluctant to consider allowing employees to work from home an accommodation under the ADA. 

Now, the embrace of teleworking for office workers by businesses in response to the COVID-19 pandemic raises the question as to whether the courts may adopt a more favorable view of teleworking as a reasonable accommodation. In the meantime, if your right to an accommodation under the ADA has been wrongfully denied, you should consult with an experienced employment lawyer

Is Teleworking A Reasonable Accommodation Under The ADA?

After the employment provisions of the ADA became effective in 1992, a series of federal appellate rulings held either that physical attendance was an essential function of a job or that working from home was an unreasonable accommodation not required by the ADA. The federal courts have also been inclined to agree with businesses that working from home would lead to a substantial reduction in an employee’s performance and productivity.

Of course, this was before the advent of the internet and other technological advances that have made teleworking a realistic option for a variety of white-collar jobs. The U.S. Equal Employment Opportunity Commission (EEOC) acknowledged these developments as early as 2003 when it issued guidance adopting a more favorable view of teleworking as a reasonable accommodation under the ADA.

The EEOC stated that “allowing an employee to work at home may be a reasonable accommodation where the person’s disability prevents successfully performing the job on-site and the job, or parts of the job, can be performed at home without causing significant difficulty or expense.”

The EEOC’s guidance does not have the force and effect of law, however, and the agency has yet to issue any formal regulations requiring teleworking as a reasonable accommodation. While federal courts have recognized in more recent decisions that technology has made working from home feasible for many office jobs, the general consensus is that attendance continues to be an essential function of most jobs.

Why This Matters

At this juncture, it is unclear whether the broad use of teleworking during the COVID-19 crisis is a one-time event or whether working from home represents the future of the workplace. While teleworking presents problems in terms of supervision and communication, the impact on productivity remains to be seen. An argument could be made that the wide-scale use of teleworking during the pandemic demonstrates regular on-site attendance is not an essential function of many white-collar jobs, however, in which case the federal courts may adopt a more favorable view of teleworking as a reasonable accommodation under the ADA.

Ultimately, the COVID-19 crisis is an unprecedented challenge that may serve to reshape the employment landscape. The best way for employers and employees to navigate this new terrain is to consult with an experienced employment lawyer.

About the Author
Douglas Lipsky is a co-founding partner of Lipsky Lowe LLP. He has extensive experience in all areas of employment law, including discrimination, sexual harassment, hostile work environment, retaliation, wrongful discharge, breach of contract, unpaid overtime, and unpaid tips. He also represents clients in complex wage and hour claims, including collective actions under the federal Fair Labor Standards Act and class actions under the laws of many different states. If you have questions about this article, contact Douglas today.