According to the President of the National Organization on Disability (NOD), people with disabilities have been disproportionately affected by the Coronavirus (COVID-19). One in five workers with disabilities have lost employment compared to one in seven of the general population, according to the U.S. Labor Bureau of Statistics (BLS).
The number of remote workers in the United States has also increased since the start of the COVID-19 pandemic. Those with qualifying disabilities not only have the legal right to work from home, but also have the right to have equal access to digital information and platforms. In addition to providing them with digital access, there are various ways employers can support disabled workers during the pandemic.
Do Employees Have the Legal Right to Work from Home?
A recent Gallup poll reveals that 33 percent of U.S. workers currently perform their job duties remotely. Although the number of people working from home has gone down since the start of the pandemic, many employees prefer to work from home due to concerns about contracting COVID-19 at work. By law, employers are not required to offer telework as an option; however if they do, they must also present the offer to those at increased risk of contracting and dying from COVID-19.
At-Risk Employees May be Entitled to Remote Work
A substantial number of Americans are at increased risk of severe illness, according to the Centers for Disease Control and Prevention (CDC). Some are more susceptible than others, and there are several factors that may place people in higher risk groups, including:
- Cerebrovascular disease
- Chronic kidney disease
- Chronic Obstructive Pulmonary Disease (COPD)
- Cystic fibrosis
- Heart conditions
- High blood pressure
- Liver disease
- Neurologic conditions
- Pulmonary fibrosis
- Sickle cell disease
Are Employers Required to Provide Reasonable Accommodations?
Employers are not required to grant every employee’s request to work from home nor are they necessarily obligated to offer disabled workers a telework option. Under the Americans with Disabilities Act (ADA), employers with 15 or more employees must provide reasonable accommodations to any worker who has a qualifying disability. However, an accommodation does not have to be remote work.
Also, an employer does not have to provide a reasonable accommodation if it would impose an undue hardship to their business. The Equal Employment Opportunity Commission (EEOC) provides some guidance on what constitutes an undue hardship. According to the Enforcement Guidance on Reasonable Accommodation and Undue Hardship, an undue hardship is one that presents significant difficulty or expense to the employer in terms of the employer’s resources and circumstances.
An accommodation that would fundamentally alter the nature of the operation of the business or one that would cost too much may be considered an undue hardship. Employers may choose among effective accommodations, and they are not required to provide accommodations that would result in an undue hardship. This means that employers are not required to grant a disabled worker’s request for remote work; they may implement other solutions, such as plexiglass, one-way aisles and other barriers, to reduce the worker’s chances of exposure.
Under both federal law and the New Jersey Law Against Discrimination (NJLAD), employers who do not provide qualified disabled workers with reasonable accommodation may be liable for failure to accommodate and discrimination. Employers must engage in an interactive process with employees who request reasonable accommodations, such as remote work, to determine whether the request may be granted. In reaching this determination, employers may request additional information and medical documentation to verify that an employee has a qualifying disability. To improve their chance of having their request granted, an employee should explain to their employer how they will be able to effectively perform their job duties while working from home.
What if an Employer Does Not Provide Reasonable Accommodations?
If a worker has a disability as defined in the ADA or the NJLAD, they are entitled to a reasonable accommodation. An employer may be subject to various legal consequences, including liability for disability discrimination, if they do not provide such accommodations to qualified employees. A discriminated worker may contact an experienced lawyer to discuss their options for legal recourse.
An employee who prevails in a disability discrimination claim may recover compensatory and punitive damages in addition to equitable relief, such as reasonable accommodation and reinstatement of employment. For example, if an employee is at increased risk for contracting COVID-19 and is denied remote work or is fired, they may be reinstated in the position and be allowed to work from home.
Employers are now faced with accommodating the burgeoning remote workforce while remaining compliant with anti-discrimination laws. There are several ways in which employers can give remote workers with disabilities the support they need:
Reach Out to Employees Regularly
In-person work environments provide many opportunities for employers to check in on their employees. Remote work does not require as much interaction. Many remote workers with disabilities feel lonely due to their isolation. Employers can help them feel more connected by reaching out to them regularly. Phone calls, emails, and videoconferencing are just some options for engaging with employees.
Ensure That Employees Have Access to Digital Information and Platforms
Remote employees with disabilities are entitled to comparable access to information and data under the federal Rehabilitation Act of 1973. Sometimes, this means providing them with assistive technology, such as screen readers, alternative input devices, and speech input software. Employers should therefore provide an accessible information technology system, one that does not rely on a single sense or ability to access.
Provide Additional Accommodations
Disabled workers may require more than support while working from home. Employers should seek to provide any other necessary accommodations to those who require additional assistance. Ensuring that employees have the accommodations they need can help boost morale and increase productivity.
Encourage Work-Life Balance
Remote work lacks the structure of a typical work environment. Without scheduled lunch breaks and work hours, remote employees can become overtaxed, thereby compromising their immune system and increasing their risk of getting sick. Employers should therefore encourage workers to maintain a healthy balance between work and personal time.
Offer Opportunities for Social Engagement
Working from home does not present many opportunities for social engagement. For some, lack of teamwork and interaction with others can be a hinderance to work performance. By providing opportunities for teambuilding, employers can help remote employees to engage with others. However, such social interactions should be optional; not all remote workers with disabilities may be able to attend or participate.
Cherry Hill Employment Lawyers at Sidney L. Gold & Associates, P.C. Protect the Rights of Disabled Workers
Workers who are at increased risk of contracting or developing health complications from COVID-19 may be entitled to reasonable accommodations, such as remote work. If you believe you were wrongfully denied an accommodation, a Cherry Hill employment lawyer at Sidney L. Gold & Associates, P.C. may be able to help you get justice and compensation. Call us at 215-569-1999 or complete our online form for a free consultation. Located in Pennsauken, New Jersey, we proudly serve clients throughout South Jersey, including Cherry Hill, Haddonfield, Marlton, Moorestown, and Mount Laurel.