remoTeworkaSareaSonaBleaCCommodaTion labor & Employment law Section Chairs : AmandaBiondolino – SassLawFirm & LaKishaKinsey-Sallis – Fisher & PhillipsLLP
whilesomeemployees werehappytoreturn totheoffice , many employeeswith disabilitiesthrived workingremotely .
The COVID-19 pandemic abruptly altered how the world operated in many ways . To keep the world turning , employers needed to quickly adjust and enable employees to work from home to keep their businesses afloat , while adhering to the health guidelines established by the government . While things have more or less returned to normal , remote work seems to be sticking around for good .
The pandemic showed that many positions can be performed remotely with negligible production loss , and some employees have even become more efficient while working from home . However , once COVID restrictions were lifted , many employers required employees to return to the office . While some employees were happy to return to “ normalcy ,” many employees with disabilities thrived under the “ new normal ” of working remotely .
The Americans with Disabilities Act requires covered employers to provide disabled employees with a reasonable accommodation . Many employees with disabilities are far more able to perform their roles remotely , and have sought accommodations to continue working from home .
To be eligible for accommodation , an employee must show that they
are qualified to perform the essential functions of the job , with or without reasonable accommodation . Essential job functions are those that are “ the fundamental job duties of the employment position .” 1 When employers are going through the interactive process to determine accommodations for their disabled employees , it would be prudent to establish which job duties are truly essential to the roles .
Courts typically show great deference to an employer ’ s judgment on which functions are essential , but the employer ’ s judgment is not conclusive evidence of whether a function is truly essential . 2 Courts also consider factors such as “ the amount of time spent on the job performing the function ” and “ the consequences of not requiring the incumbent to perform the function .” 3
The way that the world operated during the pandemic showed that for many positions , an employee ’ s physical presence in the workplace is not necessarily “ essential ” to the performance of their job duties . It has never been easier to meet with clients , customers , and coworkers through video-conferencing technology . Cloud computing has enabled employees to access almost everything they need from the comfort of their own computers .
As a general rule , an employer is not required to remove essential functions to accommodate an employee . However , if some job duties that would require an employee to be present in the workplace are more tangential to an employee ’ s role , it may not be an undue hardship on the employer to have them performed by employees who are physically present .
If a company has already built out the systems necessary for employees to work remotely , and as the technology itself advances and becomes more accessible , it may become increasingly likely courts rule that requests to work remotely are reasonable . Both employees and employers should remain cognizant of these advancements in order to understand their respective rights and obligations . n
1
29 C . F . R . § 1630.2 ( n )( 1 ).
2
D ’ Angelo v . ConAgra Foods , Inc ., 422 F . 3d 1220 , 1233 ( 11th Cir . 2005 ).
3
Id . At 1230 .
Author : Dan Kalter – Wenzel Fenton Cabassa , P . A .
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