By Doron Dorfman
Over a year into the COVID-19 pandemic, many employers are calling workers who had been fulfilling their roles remotely back into the office.
In May 2021, for example, Jamie Dimon, the CEO of JPMorgan Chase told employees that by July, they were expected to come back into their offices for at least a few days a week, adding that remote work “just doesn’t work for those who want to hustle. It doesn’t work for spontaneous idea generation. It doesn’t work for culture.” In July 2021, Apple announced its plan to require employees to be in the office at least three days a week.
These calls for getting back to the office raise particular quandaries for employees with disabilities, many of whom have disproportionally borne the brunt of pandemic layoffs.
First, there are those who started a new job remotely during the pandemic and require the ability to continue working remotely as a disability accommodation.
When it comes to employees with less-apparent disabilities (such as chronic illnesses or mental impairments), these employees might not have disclosed their disability during the recruiting process because the expectation was that they could work from home. They now face a dilemma: should they come out of the disability closet, and to what extent do they need to disclose and claim disability?
According to the U.S. Equal Employment Opportunity Commission’s (EEOC) guidelines for enforcing reasonable accommodations under the Americans with Disabilities Act (ADA), an employer is entitled to know that the employee has a covered disability and that they require a reasonable accommodation. Therefore, once the employee makes a request for an accommodation, the employer may require reasonable documentation about the employee’s disability and functional limitations.
Employers, however, cannot take an “everything but the kitchen sink approach” when requesting documentation. Despite what allegedly was asked of Apple employees, most of the time, employers cannot ask for an employee’s complete medical records, as those contain information that is beyond the scope of determining the disability and necessity of the accommodation.
An employee should not sign a waiver or any type of document allowing the employer access to their full records. Instead, the employee should provide an updated doctor’s note describing their impairments and need for accommodations.
Second, employees with disabilities may face circumstances in which their employer would argue that remote work cannot be considered a reasonable accommodation because it would eliminate an “essential function” of the job. Essential functions are defined in the ADA regulations as “the fundamental job duties of the employment position the individual with a disability holds or desires” that do not “include the marginal functions of the position.”
Pre-pandemic, federal courts generally upheld employers’ decisions to deny remote work accommodations requests on the grounds that full-time in-person presence is an “essential function” of the job.
One of the few outliers is the Sixth Circuit 2018 decision in Mosby-Meachem v. Memphis Light, Gas & Water Division. This case involved a pregnant attorney who was on ten weeks bed rest after surgery which restricted her from prolonged standing or sitting. The employer denied Mosby-Meachem’s request for remote work as a disability accommodation, stating that physical presence was an essential function of her job as an attorney. The court rejected the employer’s view, finding that Mosby-Meachem presented sufficient evidence to support the jury’s verdict that she could perform all of the essential functions of her job remotely for the ten weeks. The court concluded that even previous case law left “open the possibility of teleworking as a reasonable accommodation, particularly for a finite period of time,” depending on the circumstances.
Courts are likely going to encounter many cases discussing remote work accommodations in the near future. There may well be a shift to a more pro-employee approach by courts, which could be influenced by the expected higher numbers of disabled persons in the population due to long COVID, and by the approach of similar employers who are more open to remote work (think about workers in banks that allow remote work, like Citigroup, versus those who do not, like Chase).
Third, disabled employees who are immunocompromised (like cancer survivors or those who went through an organ transplant) face particular risks. They are more susceptible to contracting COVID-19, even after being vaccinated. Such workers may have justified concerns about returning to in-person work, particularly in the absence of employer-sponsored vaccine mandates or masking policies. If these employees are denied remote work accommodations, they may pursue updated work policies around masking. Such a request for a modification of current work policy (that does not require masking) is likely to be upheld in courts: it would not pose any undue hardship on the employer — because masks are so commonplace, there is little or no financial cost involved — and there is usually no worry of fundamentally altering the employer’s operation.
The push we see with regard to return to in-person work creates disability quandaries related to privacy as well as to safety in the workplace. Time will tell whether courts will be more attentive to the needs of employees with disabilities and whether the potential for a more inclusive new normal will be fulfilled.
Doron Dorfman is an Associate Professor of Law at Syracuse University College of Law.