By Arlene S. Kanter
While the COVID-19 pandemic has taken an enormous toll on the nation, it has also opened an unprecedented opportunity to transform our workplaces and offer greater flexibility for employees with and without disabilities.
This shift in our workplace culture presents employment opportunities for disabled people that they may not have had in the past, even with the Americans with Disabilities Act (ADA).
The ADA was enacted in 1990 to guarantee disabled people “equality of opportunity, full participation, independent living, and economic self-sufficiency.” Today, more than thirty years later, a disproportionate number of disabled people remain unemployed and underemployed. As of 2020, only 17.9 percent of disabled people ages sixteen to sixty-four were employed, in contrast to 66.3 percent of people without disabilities.
The shift to remote work during the COVID-19 pandemic might help change these trends.
Remote work offers disabled employees the chance to work, but in their own homes, which provides greater flexibility, accessibility, savings in commuting time and expenses, and even privacy that may be needed to address medical issues that cannot be addressed in the workplace.
Employees with and without disabilities who work remotely have been found to be more productive, and prefer remote work for its flexibility, work-life balance, and savings in commuting time and expenses. Many employers, too, offer remote work as a way to boost employee morale, increase employee recruitment and retention, and increase the bottom line through their real estate cost savings. Employers also welcome remote work as an opportunity to “access new pools of talent with fewer locational constraints.”
One potential new pool of talent consists of disabled people, especially those who have had difficulty getting to work because of the lack of accessible transportation or challenges finding and keeping jobs because of inaccessible workplaces.
Remote work also has the potential to raise awareness about the ableism that exists within many workplaces today. Disability prejudice or ableism is evident not merely as “a unitary negative attitude,” such as when co-workers think people with disabilities are faking it or trying to get away with something. It can also appear as paternalism, benevolence, and pity. These ableist attitudes have been shown to limit the career growth for disabled workers, and result in a lower quality of their work lives, and lower salaries. Research has found that the greatest barrier to employment for disabled people is not their lack of skills or qualifications, but the discrimination and prejudice of employers who are reluctant to hire them, often because of unwarranted fears about the cost of workplace accommodations.
Employers’ unwillingness to hire and retain disabled employees is self-defeating, since disabled employees have been found to be more “reliable and have better attendance than nondisabled employees.” Companies that hire disabled employees also have higher profits and better bottom lines than do those that do not hire disabled workers. Further, not only are disabled people often good employees, but a recent national poll revealed that 92 percent of consumers favored companies that hire people with disabilities, and 87 percent of consumers preferred doing business with them. In short, increasing remote job opportunities for disabled employees benefits employees as well as their employers.
Despite the benefits of remote work to employees and employers, alike, most courts deny remote work requests by disabled employees. Under the ADA, “qualified employees have the right to “reasonable accommodations” if they can perform the “essential functions of the job,” and, so long as the accommodation would not cause an “undue hardship” on the operation of the employer’s business. When courts have been called upon to resolve disputes between disabled employees and their employers, most courts simply defer to the employer’s judgement that remote work is not a “reasonable accommodation.” Employers argue, and courts most often agree, that physical presence in the workplace is required as an “essential job function,” which cannot be waived even as an accommodation.
Yet when the ADA was originally enacted in 1990, and in 2008, when it was substantially amended, technology had not yet advanced to where it is today. Recent advances in videoconferencing, and digital collaboration, such as Zoom, seamlessly facilitate meetings among co-workers, regardless of where they work. Remote work became so common during the pandemic that, at its height, two thirds of the workforce in the United States logged into work. Employers now have access to computer programs that allow remote supervision of employees, by knowing when an employee is logged into their computer. Webcams and other surveillance software are also available to allow employers to literally keep an eye on employees throughout the day and throughout the world. Recent advances in data protection also offer security of workplace documents accessed remotely.
In light of our new remote workplace culture, the legal reasoning of courts that deny remote work requests by qualified disabled employees is no longer persuasive. If employees can show they can maintain efficiency, productivity, and confidentiality while working remotely, and if they can be adequately supervised by their employers, their requests to work remotely should be granted as a reasonable accommodation.
To assist employers and courts in making these decisions, the Equal Employment Opportunities Commission, which is charged with promulgating regulations implementing the employment provisions of the ADA, should amend the relevant regulations to clarify that remote work is a reasonable, and, at times, necessary accommodation for many current and future employees with disabilities
While it is true that not all employees — with or without disabilities — want to work from home, and not all jobs can be done remotely, increasing opportunities for remote work should be upheld under the ADA. Increasing job opportunities by offering remote work as an option for qualified employees with disabilities is not only a reasonable accommodation; it also furthers the primary goals of the ADA to promote employment and economic self-sufficiency of disabled people.
Arlene S. Kanter is a Professor of Law at Syracuse University College of Law.