The COVID-19 pandemic has forced employers and employees to change the way they think about the physical workplace.[1] Workplace rules, regulations, and protections have had to adjust to meet this change.[2] Workers have sought various adjustments to their workplace, and some have turned to workplace accommodation regulations that existed before the pandemic.[3] Specifically, workers are asking for accommodations under the existing structure of the Americans with Disabilities Act of 1990 (“ADA”).[4] As states and municipalities begin to lift their shelter-in-place mandates, many workers have been or will be asked to return to their offices and worksites.[5] However, some workers are not ready to return to work. Whether they have been told to remain home by medical professionals to protect their own health, or hope to protect the health of family members, these workers have begun the push to expand the ADA and similar emergency regulations to protect their jobs.[6] They are appealing to federal regulations to uphold their right to work from home.[7]
The ADA prohibits discrimination based on disability.[8] Among other mandates, the ADA requires employers to provide reasonable accommodations to disabled employees who need accommodations in order to perform their work duties.[9] Disability is defined as any “physical or mental impairment that substantially limits” a major life activity, such as communicating, concentrating, or performing manual tasks. Both permanent and temporary impairments can qualify as disabilities under the Act.[11] Reasonable accommodations can include making adjustments to the physical workspace or restructuring the nature of how the job is performed, such as by modifying the work schedule.[12]
Teleworking is not included as an example of a reasonable accommodation within the text of the Act itself.[13] But a 2003 guidance document issued by the Equal Employment Opportunity Commission (“EEOC”), the administrative body charged with enforcing the ADA, makes clear that teleworking can be an appropriate and reasonable accommodation in some situations.[14] The guidance document specified that
not all persons with disabilities need—or want—to work at home. And not all jobs can be performed at home. But, 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 and expense.
As internet conferencing technology has advanced, more and more jobs can be done outside the office.[16] And as the pandemic has continued its largely unhindered assault on American lives, working from home has become a familiar and valuable way to stop the spread of the virus and protect those in high-risk groups.[17] The ADA provides a regulatory structure within which workers who are themselves considered disabled under the meaning of the statute—whether they have a physical or mental condition exacerbated by the dangers of the pandemic, or if they themselves have become ill—can ask for accommodations, including the ability to telework.[18] This process is a flexible one, but employers must grant workers accommodations if those workers can show that they can still fulfill their job requirements with those accommodations.[19]
The nature of the pandemic requires that employees worry not only about their own health, but also the health and safety of those around them.[20] They may have family members who are at high risk of severe illness from COVID-19. They may wish to continue to telework to protect their loved ones. The EEOC’s pandemic guidelines make clear that the ADA does not require an employer to accommodate an employee “based on the disability-related needs of a family member or a other person with whom she is associated.”[21] The guidelines add that “of course, an employer is free to provide such flexibilities if it chooses to do so.”[22]
Leaving this decision to employer discretion does not adequately protect employees and their families from the current health crisis. If workers can show that they can safely do their job from their homes, they should have every opportunity to receive teleworking accommodations. And that opportunity needs to be directed by the federal government, the only body that can set consistent national standards across state and municipal borders.
A recent Massachusetts lawsuit illustrates the insufficiency of leaving the employer “free to provide flexibilities if it chooses to do so.” [23] Yiyu Lin, an engineer who lives with his 81-year-old mother, was fired when he refused to work from the office.[24] In late March and again in mid-April, other employees working on-site tested positive for COVID-19.[25] Lin’s suit does not discuss ADA protections because the EEOC guidance bars him from making an accommodation request within the ADA structure.[26]
Mr. Lin should not have to choose between keeping his job and protecting his elderly mother. The ADA accommodation structure might not be able to expand to account for an employee’s family members. But we can learn from the ADA’s structure and create a system that allows employees to ask for accommodations that genuinely account for their needs and those of their families.
[1] See, e.g., Courtney Connley, et al., Thirteen Ways the Coronavirus Pandemic Could Forever Change the Way We Work, CNBC (Apr. 29, 2020), https://www.cnbc.com/2020/04/29/how-the-coronavirus-pandemic-will-impact-the-future-of-work.html.
[2] See U.S. Dep’t of Labor, Occupational Safety and Health Administration, Guidance on Preparing Workplaces for COVID-19 (2020), https://www.osha.gov/Publications/OSHA3990.pdf; CDC, COVID-19 Employer Information for Office Buildings (Sept. 11, 2020), https://www.cdc.gov/coronavirus/2019-ncov/community/office-buildings.html.
[3] See 42 U.S.C. § 12101 et seq.
[4] See id.
[5] See, e.g., Julia-Ambra Verlaine, JPMorgan Top Brass Tell Trading-Floor Staff to Come Back to the Office, Wall Street Journal (Sept. 10, 2020), https://www.wsj.com/articles/jpmorgan-top-brass-tell-trading-floor-staff-to-come-back-to-the-office-11599757313.
[6] See infra text accompanying notes 21-27.
[7] See id.
[8] See 42 U.S.C. § 12101(b).
[9] See 42 U.S.C. §§ 12111-12117.
[10] See 42 U.S.C. § 12102.
[11] See id.
[12] See 42 U.S.C. § 12111 (9).
[13] See id.
[14] See EEOC Enforcement Guidance: Work at Home/Telework as a Reasonable Accommodation, (2003), https://www.eeoc.gov/laws/guidance/work-hometelework-reasonable-accommodation.
[15] Id.
[16] See, e.g., Zara Abrams, The Future of Remote Work, 50 Am. Psych. Ass’n 54 (2019).
[17] See, e.g., Sara Berg, Unprecedented Call to Americans: Stay Home to Slow COVID-19 Spread, Am. Med. Ass’n (Mar. 25, 2020), https://www.ama-assn.org/delivering-care/public-health/unprecedented-call-americans-stay-home-slow-covid-19-spread.
[18] EEOC, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws (Sept. 8, 2020), https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws [hereinafter EEOC Guidance].
[19] Id.
[20] See Berg, supra note 17.
[21] EEOC Guidance, supra note 18.
[22]Id.
[23] Complaint, Lin v. CGIT Systems, Inc., No. 1:20-cv-11051 (D. Mass. June 6, 2020).
[24] Id.
[25] Chris Villani, COVID-19 Remote Work Request Got Engineer Fired, Suit Says, Law360 (June 4, 2020), https://www.law360.com/articles/1279738.
[26] See id.
