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Covid’s Remote Work Experience Is Slowly Changing Disability Law

July 6, 2023
Source: Bloomberg Law

  • Workers seeking telework accommodations win more frequently
  • Courts more open to considering pandemic experience

Federal judges are somewhat less likely to side with employers that deny requests for telework as a disability accommodation after the Covid-19 pandemic sparked a remote work revolution.

Employers prevailed in nearly 60% of federal court rulings over the past two years on whether they could reject employees’ disability-related remote work requests, according to a Bloomberg Law review of cases.

That’s a drop from employers’ 70% win rate in a previous Bloomberg Law analysis of cases in a two-year pre-pandemic period spanning from February 2017 to February 2019.

Still, cases over such telework request denials continue to face headwinds.

Recent federal court decisions on remote work as a disability accommodation suggest that many judges continue to apply a de facto presumption against allowing remote working. Instead, they tend to accept employer assertions that in-person attendance is essential, despite the country’s collective experience with working from home starting in early 2020.

“Scholars and advocates had hoped the pandemic would have moved the needle more,” said Nicole Buonocore Porter, a disability law scholar who directs the Martin H. Malin Institute for Law & the Workplace at Chicago-Kent College of Law. “But that would take not just courts recognizing how things have changed since the pandemic. It would also take them ending the practice of too readily deferring to whatever the employer says.”

Employers’ duty to provide reasonable accommodations for workers’ disabilities flows primarily from the Americans with Disabilities Act, which outlaws employer bias based on disabilities. The Rehabilitation Act imposes similar prohibitions on federal agencies and contractors, while certain state laws contain their own, comparable requirements.

The Bloomberg Law analysis of cases from 2021 to 2023 examined 64 rulings on the merits of remote work and disability, more than double the 30 rulings included in the previous analysis of cases from 2017 to 2019.

The review of summary judgment decisions excluded rulings that didn’t involve consideration of telework as an accommodation, such as those that turned on whether the worker had a disability within the meaning of the law or properly requested the accommodation.

Mass Experiment

Working from home has been gaining traction in the US since the 1990s, but the big shift followed the March 2020 start of the pandemic, which created a mass experiment in remote work.

Telework made up roughly 50% of paid work hours between April and December 2020, compared with 5% before the pandemic, according to a 2021 National Bureau of Economic Research study.

Many companies retained remote options as Covid risks waned. Just over 70% of employers still use a hybrid model with partial telework, and only 16% require total in-person work, a May 2023 Littler Mendelson PC survey revealed.

“The pandemic forced us to figure out the unintended consequences of remote work, what types of resources are needed, and how to collaborate,” said Lauren Winans, head of HR consulting firm Next Level Benefits. “We found out it’s not that complex.”

The mass work-from-home period starting in 2020 was a “simulation of an accommodation” for workers and employers alike, said Doron Dorfman, a disability law professor at Seton Hall University.

The increase in cases from the 2017-2019 period to the 2021-2023 time frame signals that more workers with disabilities are seeking telework accommodations, legal scholars said.

But the rulings don’t show how frequently employers grant those accommodations without going to court, noted Wendy Parmet, a law professor and faculty director of Northeastern University’s Center for Health Policy and Law.

“The cases that make it to judicial decisions usually have the weakest claims,” she said. “With the stronger cases, the employer and employee would probably reach some accommodation. Those would not be worth it for the employer to litigate.”

‘Elephant in the Room’

The ADA and similar laws generally require employers to provide disabled employees reasonable accommodations needed to perform their work, provided they don’t eliminate an essential job function, create an undue hardship on the business, or pose a direct threat to other workers.

Temporarily excusing the performance of an essential function when an employer allowed telework because of Covid doesn’t mean that it permanently changed the job’s functions, the Equal Employment Opportunity Commission said in online guidance. It also doesn’t mean that remote work is always reasonable, or that it never raises an undue hardship, the agency said.

But a worker’s experience temporarily working from home could be relevant to an accommodation request, the EEOC said.

Nevertheless, judges frequently ignored the “elephant in the room” by not considering actual data from pandemic remote work, said D’Andra Millsap Shu, a South Texas College of Law Houston professor who’s written about post-pandemic telework accommodations.

“I was so, so shocked to see case after case after case where courts were completely ignoring it,” Shu said.

Judges mentioned “Covid” or “pandemic” in about a third of the 2021-2023 telework rulings in Bloomberg Law’s analysis.

But a judge acknowledging the pandemic doesn’t necessarily help workers. Employers actually prevailed at a higher rate in cases that mentioned Covid or the pandemic (67%) than those that didn’t (55%).

For example, a Texas federal judge said the US Postal Service’s Covid work procedure was “a drastic change in a circumstance completely outside the scope of this case,” rejecting a diabetic worker’s challenge to a telework accommodation denial.

The US Court of Appeals for the Fifth Circuit overruled that decision June 28.

Developing Trends

Despite the lack of radical change after the pandemic, the downward trend in employer wins signals that courts are moving away from accepting a presumption against remote work, said Arlene Kanter, a law professor who directs Syracuse University’s Disability Law and Policy Program.

“The Covid experience has taught people to question whether in-person attendance is essential,” said Kanter, who’s written about Covid, telework, and disability accommodations.

The Bloomberg Law analysis suggests that courts are more willing to consider Covid’s impact on telework and to rule increasingly for plaintiffs.

Employers won 77% of the rulings from June 30, 2021, to June 29, 2022. About 20% of the opinions from that time frame mentioned Covid or the pandemic.

That win rate dropped to 42% among decisions between June 30, 2022, and June 30, 2023. More than half of those opinions mentioned Covid or the pandemic.

Those changes are likely driven in part by whether courts allow pandemic-era evidence. In a 2022 ruling in favor of a disabled worker, the Second Circuit said an employer’s post-pandemic actions weren’t relevant to the reasonableness of a pre-pandemic telework request.

But as new lawsuits come in, they’re more likely to be assessed through a post-pandemic lens.

“The pandemic changed the thinking of a number of employers, including many permitting work from home two – or three – days per week,” said Robert Dinerstein, law professor and director of the Disability Rights Law Clinic at American University. “With that in the backdrop, using telework as a reasonable accommodation doesn’t seem like special treatment.”

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