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More Disability Law: Working From Home After COVID-19?

On Behalf of | Apr 24, 2020 | americans with disabilities act, Coronavirus, Employment Discrimination, Practice Areas, Wrongful Termination |

Best Ohio Employment Discrimination Attorney Answer: During the COVID-19 pandemic, Can my boss deny my request to work from home? After COVID-19 has ended, can my job tell me that working from home is not an option? Can my employer fire me for requesting to work from home? Can the company that I work for take away a work at home accommodation after I have been successfully working remotely?

More Disability Law: Working From Home After COVID-19?

A few weeks ago, our employment law lawyers discussed that employers are permitted to encourage employees to work from home during the COVID-19 pandemic. (See Can My Boss Make Me Work At Home Because Of The Coronavirus?). Yesterday, our disability and work accommodations attorneys circled back to ask and answer: How Will Disability Accommodations Look After COVID-19? This struck home with a lot of employees, who immediately reached out to our workplace rights lawyers for more information regarding disability accommodations under the Americans with Disabilities Act (“ADA”).

The ADA was passed into law in 1990 and is a civil rights law that makes it unlawful to discriminate against people with disabilities in jobs, schools, transportation, and all public and private places that are open to the general public. Of course, our lawyers typically focus on the employment aspect of the ADA. Beyond the similar protections against discrimination and harassment provided under Title VII of the Civil Rights Act of 1964 to worker’s based on race/color, religion, gender/sex, national origin, and age, the ADA also requires employers to make reasonable accommodations to assist disabled employees to their jobs. Specifically, the ADA requires employers to provide reasonable accommodations to employees who, either with or without such accommodations, are qualified to “perform the essential functions of the employment position.” (See How Do I Get A Disability Accommodation For My Job?; Can A Service Dog Be A Disability Accommodation At My Job?; and Does My Job Have To Accommodate My Paralysis?). To that end, the ADA requires companies to have conversations with disabled employees to determine to decide if the employer can provide a reasonable accommodation without undue cost or undue hardship. This discussion is called the interactive process and it is a violation of the ADA for employers to refuse to engage in this discussion. If a boss, manager or even the owner of the company that you work for fires an employee for asking for an accommodation or opposing disability discrimination, it is a wrongful termination and it would be best to get a top attorney to assert a claim for you.

Effective on January 1, 2009, the Americans with Disabilities Act Amendments Act (“ADAAA”) made the definition of “disability” much broader, and thus easier for more employees to qualify and get work accommodations.

One of the big debates has been whether working remotely or working at home is a reasonable accommodation. (See Top Disability Discrimination Lawyer Reply: Is Working At Home A Reasonable Accommodation?, Is Time Off A Reasonable ADA Accommodation?, Can A Schedule Change Be An ADA Accommodation?). First, it is important to understand that there is no universal answer to every situation. For example, it would clearly not be a reasonable accommodation to allow an auto mechanic to work from home, but it should likely be reasonable to allow a financial analyst to work at home one day a week where she can do the exact same job without interruption. In between, there is a lot of grey, which is why choosing the top employment lawyers and best disability attorneys goes a long way to help employees.

As our lawyers discussed yesterday, the Coronavirus is definitely changing the way Americans very the reality and difficulty of working from home. In fact, we here at The Spitz Law Firm were on the leading edge of the recommended work from home practices. (See Our Handling Of The Coronavirus (Covid-19) Outbreak, and Coronavirus (Covid-19): Our Firm is Thinking of You and Your Families.) Of course, working from home does not mean that we are just lounging around in our PJs. The Spitz Law Firm is still here working very hard for our clients. Our employment lawyers stand ready to answer your questions when you call the right attorney.

As businesses start opening back up, employees who have medical conditions or disabilities, such as HIV, Multiple sclerosis, heart conditions, or respiratory diseases, that put them at high risk of complications from COVID-19 infection may request telework or work remotely as a reasonable accommodation. If you have a disability that puts you at a high risk of infection, but your employer denied your request to work from home, call the right attorney today! One thing that COVID-19 has not changed is an employer’s duty to accommodate disabled employees.

Of course, it is not surprising that employers are required to allow employees, employees with disabilities, in particular, to work from home during the COVID-19 pandemic. Working from home has become the new normal and is likely to remain that way for the near future. Even the Centers for Disease Control and Prevention (“CDC”) and Ohio’s stay at home orders encourage employers to allow employees to work from home whenever possible.

This begs the question, what happens after the COVID-19 pandemic ends? (It will end, just hang in there, our lawyers are pulling with you.) Will employers be more open to the idea of allowing employees to work from home? Or, will employers go back to their old ways, throwing up every possible obstacle in order to force their employees to work in the office, or forfeit their employment.

In the past, every employer’s excuse as to why they could not allow an employee to work at home is because it would cause an “undue hardship to the business” or that having the employee in the workplace is an “essential job function.” In the past, these excuses have sometimes worked for employers. For instance, in Tchankpa v. Ascena Retail Group, a case decided by the Sixth Circuit Court of Appeals shortly before the COVID-19 pandemic, the court operated on the assumption that an employee’s presence in the workplace was an essential job requirement. Indeed, the court held, “Without medical documentation showing that Tchankpa’s disability required work from home, Ascena had no duty to grant Tchankpa’s request. After all, we presume on-site attendance is an essential job requirement.”

This presumption the Tchankpa court refers to was established in EEOC v. Ford Motor Company. In EEOC, the Sixth Circuit reversed its previous decision where it held that on-site attendance was not an essential job requirement. Upon rehearing, the Sixth Circuit held:

Non-lawyers would readily understand that regular on-site attendance is required for interactive jobs. Perhaps they would view it as “the basic, most fundamental” “activity” of their job. Webster’s Third New International Dictionary 777, 920 (1986) (defining “essential” and “function”). But equipped with a 1400–or–so page record, standards of review, burdens of proof, and a seven-factor balancing test, the answer may seem more difficult. Better to follow the commonsense notion that non-judges (and, to be fair to judges, our sister circuits) hold: Regular, in-person attendance is an essential function—and a prerequisite to essential functions—of most jobs, especially the interactive ones. That’s the same rule that case law from around the country, the statute’s language, its regulations, and the EEOC’s guidance all point toward. And it’s the controlling one here.

Of course, employees have overcome this presumption on numerous occasions. For instance, in Hostettler v. College of Wooster, a case where an employee suffering from postpartum depression, requested a reduced work schedule, the Sixth Circuit Court of Appeals held that on-site attendance is not always an essential job requirement. Indeed, in Hostettler, the United States Sixth Circuit Court of Appeals held:

Wooster may have preferred that Hostettler be in the office 40 hours a week. And it may have been more efficient and easier on the department if she were. But those are not the concerns of the ADA: Congress decided that the benefits of gainful employment for individuals with disabilities—dignity, financial independence, and self-sufficiency, among others—outweigh simple calculations of ease or efficiency. To that end, the ADA requires that employers reasonably accommodate employees with disabilities, including allowing modified work schedules. An employer cannot deny a modified work schedule as unreasonable unless the employer can show why the employee is needed on a full-time schedule; merely stating that anything less than full-time employment is per se unreasonable will not relieve an employer of its ADA responsibilities.

As you can see, there has been no definitive answer to if working from home constitutes a reasonable accommodation, or if it does not. Up to this point, the courts have had to take a hard look at the facts of each lawsuit on a case-by-case basis. The courts’ analysis almost always revolving around the question of if in-person attendance is essential for that specific job.

Of course, following the COVID-19 pandemic, an employer’s argument that an employee’s in office presence is an essential job function carries a lot less water. According to the Bureau of Labor Statistics, approximately one-quarter of all Americans could and did work at home between 2017 and 2018. While there is no hard data on how many Americans are currently working from home, according to this Facilty.com article, 88 percent of employers have required or at least encouraged their employees to work from home. In the future, it will be challenging for these organizations to argue that working from home imposes some kind of undue hardship after it has been proven that these companies’ employees are more than capable of working remotely.

As we have come to learn over the past few weeks (although it feels like years), many jobs that once considered in-person attendance to be an essential job function, can, in fact, be done remotely. Not only can employees work their regular schedule, but they can also work overtime from their couch! (See COVID-19: Overtime From Your Living Room?) With new technology such as Zoom, Microsoft Teams, and cloud storage, working from home is more practical than ever, and employers will have next to no excuse to not at least consider it as a reasonable accommodation in the future. As Bob Dylan said, the times they are a-changing, and it is time for employers to change with them.

If you are searching “I need a lawyer because I have been wrongfully fired or terminated;” or “I have been discriminated against or harassed based on my …” race, national origin, gender, age, religion or disability; or even think that you might need an employment lawyer, then it would be best to call the right attorney to schedule a free and confidential consultation. Call our office at 866-797-6040 to get help now. The Spitz Law Firm and its attorneys are experienced and dedicated to protecting employees’ rights and solving employment disputes.

Disclaimer:

This employment law website is an advertisement. The materials available at the top of this page and on this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “how do I get a work accommodation for my disability?”, “am I disabled under the ADA?”, “what should I do if the company I work for will not let me work from home?” or “can my boss fired me for asking for a disability accommodation?”, it would be best for you to contact an Ohio attorney to obtain advice with respect to disability discrimination questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm, attorney, Brian Spitz or any individual attorney.

More Disability Law: Working From Home After COVID-19?

Disclaimer:

This disability discrimination employment law website is an advertisement. The materials available at the top of this page and on this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “how do I get a reasonable accommodation at work for my disability?”, “Do I qualify as being disabled under the ADA?”, “can working at home be a reasonable accommodation?” or “how do I find the top lawyer to sue for wrongful termination if I was fired today when I asked for a disability accommodation?”, it would be best for you to contact an Ohio attorney to obtain advice with respect to disability discrimination questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm, attorney, Brian Spitz or any individual attorney.