Approaching the ‘New Normal’ in the Workplace with the Same Ol’ ADA

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Here is a sentence that I never thought I would write: TikTok has helped me be a better attorney. It’s true and not because there is an abundance of critical legal thought on the app or because #AttorneyTok offers any content of meaningful substance. However, the platform has over one billion users globally and a great many of them (like me) are employees. And what do one billion people log onto TikTok to talk about? The answer, for better or for worse, is everything—but especially their jobs. It is no surprise, then, that much of the content published on this boundless social media app tracks with the recent trends we are seeing in employment litigation. According to data on recent filings, discrimination lawsuits related to remote work are steadily on the rise and employers should remain vigilant with regard to ADA compliance to avoid becoming the next defendant.
 
With the increase of claims against employers in mind, a recent influx of TikTok videos discussing return to work plans and flexible remote work arrangements caught my attention. One clip in particular sticks out: the user sits at his desk at home where he is working remotely and demonstrates using a device specially designed to ensure his computer mouse is engaged in continuous movement, even when he walks away. This, he explains, is so that he is not flagged by the software installed on his computer that tracks his keystrokes and mouse clicks, which his employer uses to confirm whether or not he is working. I’ll repeat a refrain familiar to all employers, HR professionals, and employment attorneys alike: wonders never cease. In fact, earlier this year, my Ice Miller colleague Kayla Ernst wrote extensively about the legal implications of employee monitoring, and she offers excellent recommendations to employers who are currently engaging in some form of monitoring or who are considering doing so.

Let Me Work From Home or I’ll Sue You

The advent of innovative gadgets designed to thwart monitoring software should perhaps be the least of an employer’s concerns as we continue grappling with what it means to return to work after 18 months of pandemic life. Prior to the pandemic and the resulting shift in our employment landscape, courts have generally been reluctant to find that remote work is a reasonable accommodation because, often, attending one’s job is an essential function. Now, a recent rise in the number of discrimination charges and lawsuits filed against employers involving remote work arrangements, or lack thereof, demonstrates that our “new normal” comes with new challenges under the Americans with Disabilities Act (as well as the Rehabilitation Act, which prohibits recipients of federal financial assistance from discriminating against qualified individuals with disabilities in employment). A few recent examples illustrate the types of claims that are being filed against employers relating to remote work: 

• In Georgia, a university professor filed a discrimination charge with the Equal Employment Opportunity Commission (a precursor to a federal lawsuit) alleging that the university failed to accommodate her disability when it required her to return to in-person work on the university campus. The professor, who has a pacemaker and is ineligible to receive the COVID-19 vaccine, further alleged that her employer advised it would deny all ADA accommodations for COVID-19-related disabilities.
• In a lawsuit filed in a federal court in Wisconsin, the plaintiff, a human resources employee with gestational diabetes, alleged that her employer denied her remote work request despite her high-risk of contracting COVID-19. The claims contained in the lawsuit include interference with the employee’s rights under the Family Medical Leave Act and intentional discrimination and failure to accommodate under both the ADA and Title VII.
• Earlier this year, a Florida social worker filed a lawsuit against her employer, a public school district, when it denied her request to work from home. The plaintiff alleged that her mental health conditions, which predate the COVID-19 pandemic, were exacerbated during quarantine to the point that she required reasonable accommodations in order to perform the essential functions of her position. Specifically, the plaintiff argued that her employer failed to engage in the requisite interactive process when it denied her request to work from home and ended the dialogue there.

How to Stay Ahead

Hundreds of similar lawsuits related to remote work have been filed against employers in the last year. So, what should employers take away from this rise in litigation? It’s pretty simple: we may be living in a new world, but our constant friend—the Americans with Disabilities Act— remains the same. Here are a few ADA basics and practical tips that employers should consider when addressing employees with COVID-19-related disabilities and/or remote work requests as a reasonable accommodation:
 
Remember: 

• If an employee is a qualified individual with a disability, employers are required to provide reasonable accommodations and engage in an interactive dialogue to discuss possible accommodations—including the potential of remote work.
• The ADA does not require an employer to offer a remote work program to its employees, but if a remote work program is offered, employees with disabilities must be given an equal opportunity to participate.
• Permitting an employee to work from home may be a reasonable accommodation even if the employer does not have a remote work program because changing the location where work is performed may fall under the ADA’s requirement of modifying workplace policies.
• If an employer chooses to provide accommodations that go beyond what is required by the ADA, it should do so in a non-discriminatory manner. For example, employers that go above and beyond for employees with physical disabilities must also do so for employees with mental disabilities.
• Having provided for remote work arrangements during the height of the pandemic does not mean that remote work is necessarily a reasonable accommodation under the ADA for all positions going forward.

Be sure to: 

• Ensure job descriptions are accurate and up-to-date. Determining and documenting the essential functions of each position, such as in-person work performance for certain roles, is critical when determining whether a particular individual can perform those essential functions, should any issues arise.
• Meaningfully consider the potential of a requested remote work accommodation as long as it does not create an undue hardship for the employer.
• Engage proactively in the interactive process by offering alternative effective accommodations if remote work would create an undue hardship.
• Consult legal counsel if you have questions about remote work and the ADA.

For more information, contact Sloan Holladay-Crawford or any member of Ice Miller’s Labor, Employment, and Immigration Group.
 
This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.