By Scott J. Schweikart
The silver lining of the COVID-19 pandemic is that it has opened the door to new opportunities to improve our society. For example, office changes brought about by the pandemic — e.g., remote working or telecommuting — made life easier for many workers with disabilities. However, as more of the workforce begins returning to the office, there are notable examples of employers pushing back on the increased accommodations realized during the pandemic, indicating that some gains in accommodation will continue to be hard fought. In an effort to rid our society of harmful inequities, the struggle for these rights has important value.
The workplace accommodations gained during COVID-19 are nothing new to the community of workers with disabilities; some workers had already been approved to work at home prior to the pandemic. But the greater flexibility ushered in by the pandemic offered many workers greater levels of accommodation than previously seen.
For many people with disabilities, the immediate change to remote work was bittersweet, as many employees have “long asked, fought for, and have been denied these reasonable accommodations,” only to see these long desired work arrangements “so effortlessly implemented.” While the greater flexibility is largely appreciated, e.g., 9 out of 10 workers with a disability would like to continue working from home even after the pandemic is over, it is noteworthy that because of a circumstance that “impacts nondisabled people” — i.e., the COVID-19 pandemic — accommodations like working from home became “suddenly available.”
This raises an important legal question: is the law that allows for disability accommodation too narrowly construed or applied? The Americans with Disabilities Act (ADA) requires most employers provide reasonable accommodation with regards to these three factors: “1) ensuring equal opportunity in the application process; 2) enabling a qualified individual with a disability to perform the essential functions of a job; and 3) making it possible for an employee with a disability to enjoy equal benefits and privileges of employment.”
Some scholars note that in a post-COVID era, how courts approach interpretation of the ADA should change. Michelle Travis argues that courts need to eliminate their presumption of “workplaces built upon a ‘full-time face-time norm,’” which is an old model no longer reflective of telecommuting realities.
Indeed, some recent federal court opinions have indicated that views may be shifting. For example, a federal district court recently sided with an employee seeking remote work as an accommodation, finding that the “plaintiff’s request to telework was a request for a reasonable accommodation that enabled them to perform the essential functions of their job.”
Additionally, in 2014 the D.C. Circuit — while finding that remote work could be a valid accommodation — observed that “because of advances in technology in the workplace, it will be ‘rare that any particular type of accommodation will be categorically unreasonable as a matter of law,’” underscoring that remote telework should not per se be deemed an unacceptable accommodation under the ADA, even though such a technologically enabled accommodation would likely have been deemed unreasonable or unthinkable in past employment contexts that strongly identified with an in person office model.
Broadly, the discussion revolving around workplace accommodations is one directly tied to equity and justice in our society. Brookings data from 2018 has shown that “only 40 percent of adults with disabilities in their prime working years (ages 25-54) have a job, compared to 79 percent of all prime-age adults.” The profound disparity can be addressed from different angles, but a key solution is in increasing the allowance of workplace accommodations, which can allow a greater number of workers with disabilities to enter and remain in the workforce.
In many instances, this may involve increased remote or hybrid remote/in office work. While remote work has its challenges — e.g., workplace bias whereby remote workers become less “visible” and are overlooked for promotional opportunities — these are not insurmountable, and are typically rooted in professional culture rather than remote work per se. Moreover, throughout the pandemic we have seen the benefits of remote work. Widening the door to remote work can allow more workers into the economy, reduce disparities between workers with disabilities and those without, and increase diversity of the workforce.
The COVID-19 pandemic is not only a mass death event, but also a mass-disabling event. SARS-CoV-2 infection can cause a wide array of disabilities, such as Long COVID, which likely will qualify as a disability meriting legally entitled employment accommodations as required for other types of disabilities. Hence, not only has the pandemic ushered in changes to workplace accommodations, it is also continually influencing the scope and number of disabilities in need of such accommodations.
Momentum is rightly building to solidify labor accommodations arising during the pandemic in policy and law, so that they will endure in a post-COVID era. As Arundhati Roy so deftly concluded two years ago: the “pandemic is a portal”; a portal from which we can emerge as a society vastly improved and rife with new possibilities — a world wholly transformed and more just than before. But as Roy reminds us, such an outcome is not certain; we must “fight for it.”
Scott J. Schweikart, JD, MBE is a senior research associate for the American Medical Association’s Council on Ethical and Judicial Affairs in Chicago, Illinois, where he is also the legal editor for the AMA Journal of Ethics.