The COVID-19 pandemic caused a significant shift worldwide on how we think about remote work and work-from-home policies. Return-to-office (RTO) policies, whether full or part time, have become a hot topic for many companies. RTO policies—which are meant to be beneficial for companies and employees—have sparked a somewhat unexpected result: an increase in discrimination claims filed against employers.
As workers have gotten accustomed to doing their jobs remotely, employees with disabilities in particular, are increasingly requesting accommodations from their employers to work from home, part or full time. Refusal by the employer to provide this accommodation, or fully engage in the interactive process, can lead to legal problems for employers—as shown by the rise in lawsuits filed accusing employers of discriminating against employees with disabilities by denying work-from-home accommodations.
Although employers are generally conferred discretion to establish and implement their work-from-home and RTO policies, if an employer is not cautious, exercising such discretion, or enforcing such policies, without granting any exception, after permitting remote work for years after 2020, may make it more difficult for an employer to claim that remote work would pose an undue hardship on the employer or would not be a reasonable accommodation for the employee. Employers have several responsibilities in remote work arrangements that impact the legal aspects of their policies.
A key obligation for employers is to comply with the Americans with Disabilities Act (ADA).
Remote Work as a Reasonable Accommodation Under the Americans With Disabilities Act
The ADA is a federal civil rights law that prohibits employers from discriminating against people with disabilities that affect everyday activities. Specifically, it protects “qualified individuals” on the basis of disability. A “qualified individual” is one “who, with or without reasonable accommodation, can perform the essential functions of the employment position.”
Since March 2020, the Equal Employment Opportunity Commission (EEOC) has been actively issuing guidance to employers, to stress the need for employers to consider remote work, also known as telework, as a potential reasonable accommodation under the ADA for individuals with disabilities, provided the individuals can fulfill essential job duties. The EEOC is an agency responsible for enforcing federal discrimination laws, and it can bring discrimination lawsuits against employers on behalf of employees.
To comply with the ADA, once an employee with a known disability requests a reasonable accommodation that could help the employee perform its job duties, companies generally must provide a reasonable accommodation (albeit maybe not the one requested by the employee), unless the employer can show an undue hardship. 42 U.S.C.A. § 12112(b)(5)(A); 29 C.F.R. § Pt. 1630, App. Moreover, if remote work would eliminate an essential function of the job, a remote work request is typically not considered reasonable. See Freeman v. City of Cheyenne, 660 F. Supp. 3d 1155, 1165–66 (D. Wyo. 2023), aff’d, No. 23-8022, 2024 WL 464069 (10th Cir. Feb. 7, 2024).
Although an employer does not have to grant a full- or part-time remote work request accommodation, employers should still thoroughly investigate the situation before refusing such accommodation, to avoid potential liability. 42 U.S.C.A. § 12112(b)(5)(A); 29 C.F.R. § Pt. 1630, App.
Rise of ADA-Related Discrimination Lawsuits Since 2020
Since 2020, ADA-related lawsuits and EEOC claims against companies have surged, accusing employers of discriminating against employees with disabilities by denying work-from-home accommodations.
For example, in February of 2023, the EEOC sued a Northeast Ohio nonprofit by alleging it discriminated against a 10-year employee who had cancer because the company did not allow her to work remotely while undergoing radiation for breast cancer. EEOC v. United Labor Agency, 23-cv-00283 (N.D. Ohio Feb. 14, 2023). The EEOC alleged that the employer violated the ADA after denying the employee her request to work remotely until her treatment was done. As a result of this lawsuit, the employer agreed to compensate the employee and adhere to various training and reporting requirements. The United Labor Agency case indicates the significance of the interactive process. Employers must engage in good faith discussions with employees that require reasonable accommodations. Failing to do so, may open the employer up to significant monetary liability and continuous extra reporting requirements to the EEOC for years at a time.
The EEOC brought a similar complaint in 2021 after a facilities management company denied an employee’s request with higher COVID-19 risk, due to a pulmonary condition, to work from home. EEOC v. ISS Facility Services, Inc., No. 21-0378 (N.D. Ga. Sept. 7, 2021). The company settled the discrimination lawsuit. Pivotal in the lawsuit, was the EEOC’s argument that the employer prohibited the requesting employee’s telework accommodation, yet, it permitted other similarly situated employees to work from home. As such, the case serves as an important reminder to employers: permitting one employee to work remotely and then prohibiting another who has similar job functions could be used against the employer.
In February of this year, a Southern District of Illinois court denied an employer’s motion for summary judgment in a case where an employee sued her company after it denied her request to work remotely due to suffering from disabilities. Cowell v. Illinois Dep’t of Hum. Servs., No. 3:21-CV-00478-NJR, 2024 WL 551891 (S.D. Ill. Feb. 12, 2024). The employee requested to work remotely due to being diagnosed with lupus, an autoimmune disease, and chronic back, neck, and spinal pain. As such, the employee was immunocompromised and particularly susceptible to COVID-19 infection. The employer argued physical attendance was an essential function of the job as the employee was required to be on-site and supervise direct reports. The employee however, noted that she routinely worked remotely from her encrypted cellphone. Moreover, her job description details that she primarily coordinated with courts and attorneys via phone, email, and other remote communication methods. This led the court to consider that a significant part of her job could be done remotely.
In denying the company’s request, the court found that it was not clear that physical attendance was an essential part of the employee’s job. This case is scheduled for trial this month. The case highlights the need for employers to be able to explain why physical attendance is an essential function of a job once a person with a disability requests an accommodation to work from home. In addition, this case shows the fact-intensive nature of ADA cases.
What Are the Best Practices for Employers?
Requests from employees for remote work are here to stay. Given the significant rise in ADA claims where an employee seeks remote work as a reasonable accommodation, it is pivotal for employers to think about this issue when implementing their RTO and remote work policies.
Best practices to minimize the risk of liability may include among other things:
Keep up with the rapidly changing federal laws and guidance, and state’s laws on remote work. In recent years, federal rules and guidelines have been updated to accommodate the growing reality of remote work for many employees. The law continues to evolve, as evidenced by several recent updates to EEOC guidance in the past few months:
- On June 18, 2024, the final regulation of the Pregnant Workers Fairness Act (PWFA) will go into effect. Generally, the PWFA requires a covered employer to provide a “reasonable accommodation” to a qualified employee’s or applicant’s known limitations related to, affected by pregnancy conditions, unless the accommodation will cause the employer an “undue hardship.” Some examples of possible reasonable accommodations under the PWFA include remote working.
- On April 29, 2024, the U.S. Equal Employment Opportunity Commission (EEOC) finalized its harassment guidelines addressing workplace misconduct. The new guidance includes updates aimed at addressing workplace harassment in virtual or hybrid work environments and workplace harassment on the basis of sexual orientation, gender identity, and pregnancy.
Regularly update internal remote and RTO policies to reflect the changing federal and state laws and guidance. For example, employers should update employee manuals to indicate whether attendance in person is necessary so that workers are clear as to expectations of the employers. When asking employees to return to office, employers should provide adequate notification and make clear to employees and applicants alike if in-person attendance is an essential function of the job.
Regularly update job descriptions in light of the realities of what is required of employees in those roles. For example, employers should update job descriptions to indicate whether it is an essential function of a job to be in person or if the role can be hybrid, and to what extent the employee can be off-site.
Regularly train managers in certain best practices related to remote working. For example, managers should be trained on how to avoid on-site favoritism to make sure all employees—whether working remote or not—are included. Managers should also be trained on best practices when a disabled employee requests a remote work accommodation.
Carefully examine a request from an employee claiming a disability for a reasonable accommodation. This includes looking at whether the job function can be performed remotely. Consult with internal or outside counsel to help with the interactive process and determine whether to deny or approve a reasonable accommodation.
Jennifer Lada is a partner with Holland & Knight where she focuses her practice on complex commercial litigation, including antitrust, employment, shareholder and tort disputes. In her labor and employment practice, Ms. Lada has significant experience representing employers in litigation involving restrictive covenants, as well as discrimination, retaliation, and wrongful termination claims.
Sara Schretenthaler Staha is a partner with Holland & Knight who regularly defends clients in employment and intellectual property litigation matters, while also providing counsel and practical advice to employers to mitigate the risk of workplace litigation.
D’Andre Chapman is an associate with Holland & Knight. His practice focuses on litigation and dispute resolution across an array of areas, including labor, employment and benefits matters.