An employee refuses to come in to work or calls in sick or doesn’t show up or call in at all because of the COVID-19 pandemic. There are plenty of excuses to do that, some real and some not so real. Many employees have been working from home these days, and they like it. Some may want to keep it that way by convincing the employer to embrace the economic virtues of a virtual workplace. Others may really be sick or have a medical condition that gives them a good reason to work at home. One of the good reasons to work from home is the Americans with Disabilities Act (ADA).[1] The ADA prohibits an employer from discriminating against a qualified employee with a disability for being disabled. A disabled employee who wants to work from home, or to continue to work from home if called back to the workplace, can play the ADA card to try to achieve that goal. But success is not guaranteed, or even likely in most cases. Employers should be prepared to respond within the bounds of the law when the issue presents itself.
Employers have traditionally opposed allowing their employees to work from home due to supervision, productivity, reliability and accessibility issues. [2] Employers generally have the right to compel the physical presence of their employees in the workplace, and employees do not have a legal right to work from home. There are exceptions to that, however, primarily when an employee is disabled and entitled to the protections of the ADA. The ADA protects disabled employees from discrimination for being disabled. If an employee is disabled and qualifies for that protection, an employer must take steps to accommodate the employee’s disability if it is reasonable to do that without imposing an undue hardship on the employer. The question then becomes whether working from home is a reasonable accommodation, or the only reasonable accommodation, that is not an undue hardship on the employer. [3]
The threshold question, of course, is whether an employee is a qualified individual with a disability under the ADA. A qualified individual with a disability is someone with a disability who can perform the essential functions of the job with or without reasonable accommodation, has a record of being disabled, or is regarded by the employer as being disabled. A protected disability under the ADA is a physical or mental impairment that substantially limits one or more major life activities.
Having the COVID-19 virus is without a doubt a recognized disability, at least during the COVID-19 pandemic. There is no doubt that an infected employee who has been working from home should continue to work from home until he or she is virus-free and medically certified to return to work. That is not ADA discrimination because there is good reason to treat an infected employee differently than a healthy, virus-free employee. And there is certainly no good reason why an employer would want to force the infected employee back into the workplace. There is no ADA issue to address or resolve.
On the other hand, an employee who is not infected by the COVID-19 virus does not have an ADA disability. And, although there may be other good reasons to avoid an unsafe or unhealthy work environment, an unspecified fear of exposure to the virus is not a protected disability. Again, there is no issue to address or resolve.
The difficult questions arise when an employee has, or perhaps develops, an underlying disability other than COVID-19 that makes him or her particularly susceptible to catching the virus and transmitting it to family members and others. A recent case has held that an employee’s moderate asthma, a condition that is not usually considered to be a disability unless it is severe, may qualify as an ADA disability when, coupled with the COVID-19 pandemic, it placed the employee at greater risk for serious illness or even death if he were to contract the virus. An employee with such a health condition may request, and his or her doctor may recommend, working from home or continuing to work from home as a reasonable accommodation of the disability that will allow the employee to perform the essential functions of his or her job without undue hardship to the employer.
An employer confronted with this situation and request for reasonable accommodation should address the issue head on and be very careful not to violate its obligation under the ADA to engage in an “interactive process” with the employee. That means the employer and the employee must have an interactive dialogue about whether and how the employer can reasonably accommodate the employee’s disability without undue hardship. Failing to do that may itself be a violation of the ADA.
Employers and employees should bear in mind that all cases are different and depend on their facts. There is no one-size-fits-all legal analysis, and what may be good for the gander may not be good for the goose. Whether working from home or continuing to work from home is a reasonable accommodation that does not impose an undue hardship on an employer will turn on issues such as what the work is, what the essential functions of the job are, and whether any hardship imposed on the employer is “undue” or benign. A construction laborer obviously cannot do his or her job from home, and a telemarketer obviously can. There are many shades of grey in between. Employers and employees should also bear in mind that, again depending on the facts, working from home is not the only accommodation that may be reasonable under the circumstances. An accommodation need only be reasonable; it need not be the preferred or best alternative available. For example, depending on the circumstances, alternatives such as taking individualized special precautions to protect a disabled employee from being infected in the workplace – for example, physically isolating the employee from other employees, installing plastic shields, or providing the increased protection of an N-95 or higher grade mask – may be a reasonable alternative.
An employer’s prior practice is also important. One court has found working from home to be reasonable under the circumstances when the employer had previously allowed employees to work from home. The reasoning was that, because the employer believed working from home was reasonable before, it must still be reasonable now. An employer should make it clear to all employees it allows to work from home that it is only temporary, and that they are expected to return to the workplace when asked to do so.
The challenge for employers is to determine what is reasonable under the circumstances in the age of COVID-19 without the aid of a consistent line of court decisions to guide them and their lawyers. From a lawyer’s standpoint, it is still early in the pandemic to advise an employer or employee with confidence, and what we know or think we know about the virus changes from day to day. Worse, concerns about calling employees back to the workplace are only one of many issues employers must consider as the pandemic continues to surge. OSHA and state law health and safety regulations are at play, and the courts are now grappling with employee lawsuits seeking damages from employers for negligence in failing to maintain a safe and healthy workplace.
The best legal advice, then, appears to be to “wait and see” what happens. Unless an employer or employee has a really good reason to rock the new-normal boat, they should probably maintain the status quo for now.
And, of course, best advice in any business or employment-related situation, pandemic or no pandemic, is always to consult a competent attorney before you do anything.
[1] The ADA applies to employers with 15 or more employees. Similar state laws may apply to any employer regardless of how many employees it has.
[2] I am primarily talking about white-collar and white-collar support office jobs. Most hands-on blue collar jobs cannot be performed remotely, and there is no viable option to work from home.
[3] The onset and rapid spread of the COVID-19 pandemic has forced makeshift changes to rules that normally apply to ADA protections in the workplace. The Equal Employment Opportunity Commission (EEOC), the government agency that enforces all employment anti-discrimination laws, including the ADA, has issued guidance that can help an employer navigate the impact of COVID-19 in the workplace, including when an employer can require an employee working from home to return to the workplace. See EEOC publication, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws”, updated December 16, 2020.
