Close

COVID-19 and the Workplace

It’s October, which means it’s time to observe National Disability Employment Awareness Month (NDEAM). This year’s theme, “America’s Recovery: Powered by Inclusion,” highlights the importance of ensuring that disabled people have full and equal access to employment opportunities as the United States continues to recover from the COVID-19 pandemic. This priority is one that legal employers should be particularly concerned about as they construct plans for possible returns to in-person work settings. 

 

As the Delta variant spreads throughout the United States, high-risk, disabled, chronically ill, and immunocompromised people (particularly those with comorbidities) remain at increased risk of contracting COVID-19. Telework must remain an option for high-risk and immunocompromised employees. The changes that companies made during the pandemic have expanded the inclusive and accommodating workplace practice. 

 

The Americans with Disabilities Act requires employers with 15 or more employees to provide reasonable accommodations to disabled employees, so long as it does not place an undue hardship on the employer or alter the essential functions of the job.[1] State laws may provide additional coverage or be more expansive. 

 

The EEOC has stated that an employer need not automatically grant a disability-related accommodation for telework upon reopening and may engage in the interactive process to understand the “disability-related limitation that requires teleworking.” [2] Additionally, employers need not excuse essential functions that were temporarily permitted to be suspended for COVID-19 safety.[3] However, if an individual’s disability puts them at higher risk of contracting or experiencing complications from COVID-19, that is a “disability-related limitation.” It isn’t easy to imagine many situations where working in person in a legal office is an essential function. Many tasks can be effectively and safely completed remotely. For some lawyers, particularly those who must attend court in person or meet with indigent clients without access to phones or electronics to communicate, remote-work accommodations could become slightly more complicated to implement. However, they can generally still be implemented in some way. [4] When they absolutely cannot be, in-person interactions should be limited as much as possible and made as safe and low risk as possible.[5]

 

Telework, in general, is also an option that can make legal positions more accessible to disabled workers even after the pandemic. If employers are genuinely interested in prioritizing diversity, equity, and inclusion and recruiting attorneys with different and broader perspectives that can improve their clients’ representation, accessibility and flexibility are vital. Telework provides just that, regardless of whether we are currently in a pandemic. There are many misconceptions associating telework with a lack of productivity. However, studies show that employees who telework are more productive and even less likely to time off.[6] As a disabled person, I find that I am much more productive when I telework. Commuting takes a lot of energy, which makes me tired and causes pain. That decreases my productivity at work. Without a commute, that issue is non-existent. Additionally, at home, I have access to all of my medications and can sit comfortably on my own furniture when necessary to ease pain. It is also easier to take a quick nap in the middle of the workday, such as over my lunch break, to help me to remain productive throughout the day. In addition to being beneficial for disabled employees, telework also has the added benefit of providing more flexibility for employees with children, and disproportionately women who may serve as caretakers. It may also be helpful for pregnant employees. 

 

Employers may still be required to permit disabled certain employees to telework even post-pandemic as a reasonable accommodation in compliance with the ADA.[7] However, as we like to emphasize, the ADA should be viewed as the floor and not the ceiling. Permitting telework more broadly and not requiring disabled employees to separately appeal for an accommodation or an exception just for them makes a workplace more welcoming and inclusive. Overall, prioritizing universal access so that all employees can equally participate and remain productive and engaged is key. 

 

As we continue to push through the COVID-19 pandemic, employers cannot forget disabled workers or leave them behind as they create reopening plans. We have learned that it is possible to work efficiently and effectively remotely over the last year and a half as attorneys. We all moved to remote operations as a matter of necessity, but so much has been developed to connect us so that telework remains a very feasible and functional alternative for the future.


To continue to make sure the legal profession remains accessible for all, that is a practice we would encourage employers to maintain. Law firms, legal organizations, non-profits, and companies can set the standard for how to build an inclusive workplace as we recover from the COVID-19 pandemic. Expanding flexible work hours and telework options is an important aspect of ensuring disabled people can continue to work while the risk of death and other complications from COVID-19 continue to be high for so many disabled and immunocompromised people, as well as creating space for increased productivity and addressing access needs on a larger, more universal scale post-pandemic. Implementing a broad telework policy is just one step that you can take to make your workplace more accessible and inclusive for disabled employees as we celebrate NDEAM and recognize the value disabled lawyers bring to the table.


[1] 42 U.S.C § 12111(5)(A), (8), (10); 42 U.S.C. § 12112. 

[2] U.S. Equal Emp’t Opportunity Comm’n, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws (2021),

 https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws

[3] Id. 

[4] In general, state courts must follow Title II of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act of 1973, meaning if a disabled attorney requests a reasonable accommodation such as a remote hearing, that may be possible. Federal courts have their own rules established in regard to anti-discrimination; they need not follow the ADA or the Rehabilitation Act. Alternatives for client interactions may include having a staff member who is not high-risk meet with the client physically while the high-risk attorney remains remote. The staff member who is not high-risk would assist with any technological gaps.

[5] Maintaining policies that require vaccinations for employees, requiring masks, requiring regular testing, maintaining appropriate ventilation, and maintaining social distancing are helpful. Having a high-risk employee perform any necessary tasks to perform in-person outside, masked, and distanced from others is particularly important. Additionally, if public transportation is required to access the space, that might be an additional risk for a disabled individual. If there is a way to reduce that risk or fund alternative transportation, that would be more accessible and less of a risk. 

[6] Aliah D. Wright, Study: Teleworkers More Productive—Even When Sick, SHRM (Feb. 13, 2015), https://www.shrm.org/resourcesandtools/hr-topics/technology/pages/teleworkers-more-productive-even-when-sick.aspx.

[7] U.S. Equal Emp’t Opportunity Comm’n, OLC Control No. EEOC-NVTA-2003-1, Work at Home/Telework as a Reasonable Accommodation (2003), https://www.eeoc.gov/laws/guidance/work-hometelework-reasonable-accommodation.

Share now
Share on facebook
Facebook
Share on google
Google+
Share on twitter
Twitter
Share on linkedin
LinkedIn
Share on pinterest
Pinterest
Marissa Ditkowsky

Marissa Ditkowsky

Associate Director of Job Accommodations, American University Washington College of Law '19. Tzedek DC’s 2019-2021 Gallogly Family Foundation Fellow. Her project focuses on serving low-income DC residents with disabilities facing debt and the distinct issues they experience in the process.

Font Resize
%d bloggers like this: