Remote Work and the Future of Disability Accommodations
80 Pages Posted: 19 Jan 2023
Date Written: November 2022
Abstract
When the Americans with Disabilities Act was originally enacted in 1990, and later amended in 2008, technology had not yet advanced to where it is today. During the current COVID-19 pandemic, recent advances in technology enabled more than half of the national labor force to work remotely. Further, by most estimates, a significant percentage of the workforce, with and without disabilities, want to continue to work remotely, at least part time, even after the pandemic ends. This Article argues that disabled employees, like their nondisabled co-workers, should enjoy the benefits of our new remote workplace culture.
Over the years, courts have been called upon to resolve disputes between disabled employees and their employers regarding whether or not an employee’s request to work remotely is a “reasonable accommodation” under Title I of the ADA. An examination of the cases from every federal circuit over the last decade reveals that most courts rule in favor of employers, based on the employer’s judgment that working on site is an essential function of the particular job. However, due to recent changes in the workplace culture as a result of the COVID-19 pandemic, the author argues that more courts should recognize remote work as a reasonable workplace accommodation for qualified employees. 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 as a reasonable accommodation for qualified employees furthers the goal of the ADA to promote employment and economic self-sufficiency of people with disabilities. Increasing remote work opportunities for disabled workers also may challenge the ongoing and systemic ableism that exists within many workplaces today.
While discussions of the future of remote work have been a “hot topic” during the pandemic, this Article is the first to systemically review and analyze the state of remote work as a disability accommodation under Title I of the ADA. This Article incorporates legal analysis and social science evidence in support of its argument for remote work as a reasonable accommodation. This Article concludes with recommendations for changes to the applicable EEOC regulations which would clarify that remote work, or “telework,” the term used in the current regulations, is a reasonable accommodation for qualified employees under Title I of the ADA. Such changes are necessary to re-envision remote work as the future of disability accommodations under the ADA.
Keywords: disability, discrimination, employment discrimination, the Amerians with Disabilities Act, EEOC, When the Americans with Disabilities Act was originally enacted in 1990, and later amended in 2008, technology had not yet advanced to where it is today. During the current COVID-19 pande-19, remote work
JEL Classification: K19, K39, K31, K42, K49, J28, J48, J71
Suggested Citation: Suggested Citation