Employee Survival Guide® - Remote Work As A Disability Accommodation

Starting point is 00:00:08 Hey, it's Mark here. Welcome to the next edition of the Employee Survival Guide, where I tell you, as always, what your employer does definitely not want you to know about. And a lot more. Hey, welcome back. It's Mark and another edition of the Employee Survival Guide. Today's topic is remote working from home.

Starting point is 00:00:26 It's not a luxury. Many employees, disabled employees. It is the only way they can work. The famous thesis, Stephen Hawkin, said, concentrate on things that your disability doesn't prevent you doing well, and don't regret the things it interferes with. He understood something that the American legal system is still imperfectly learning to grasp. A person with a disability can be brilliant, indispensable, irreplaceable,

Starting point is 00:00:55 capable of doing the work with extraordinary skill, and still face a workplace that was designed without them in mind. Hawking did not let that fact that he could not run, on a chalkboard, stop him from revolutionizing cosmology. He adapted, he used technology, he worked differently than his colleagues, and the world is immeasurably better for it. For millions of Americans with disabilities, the central challenge of professional life is not the job itself. It is everything surrounding the job, the commute, the fluorescent lighting, the open office plan, the 12-hour days on a hard chair, the exposure to pathogens than the crowded elevator,

Starting point is 00:01:36 Their disability does not prevent them from doing the work. It prevents them from doing the work the way everyone else does it. And in 2006, the technology to support remote work more capable and accessible than at any point in human history, the laws answer to that challenge matters enormously. The America's Disability Act was enacted in 1990 and significantly strengthened by the amendments in 2008, which prohibit employers from discriminating against qualified individuals. and disabilities. It applies to 15 more employees in a company. It defines discrimination to include not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified

Starting point is 00:02:19 individual with a disability. Thank you, Congress, for writing a very strangely worded statute. The statute also goes on to say a reasonable accommodation is defined broadly as any modification or adjustment to the work environment or to the manner and circumstances under which A position is customarily performed. That enables a qualified individual with a disability to perform the essential functions of that position. And again, the law is written that way. It's not the usual language people use, but that's the way Congress wrote it. Critically, working from home, changing the location where work is performed,

Starting point is 00:02:54 has long been recognized by the EEOC as a potential form of reasonable accommodation within this meaning of the statute. The ADA's protections extend to individuals who have a disability, as defined by the statute, which is, number one, a physical or mental impairment that substantially limits one or more major life activities. Number two, a record of such an impairment. Three, being regarded as having such an impairment. The amendments to the ADA substantially broadened the definition explicitly directing that the term substantial limit be construed broadly in favor of coverage. Most states, if all states, have a fairer employment practices act, and Connecticut has one called the Connecticut Fair Employment Practices Act, which prohibits employment discrimination based on disability.

Starting point is 00:03:39 It defines physical disability to include but not limit blindness, mental disability, and requires employers to provide reasonable accommodations to qualify to individuals with disabilities, unless doing so would be an undue hardship to the employer. Undue hardship is the defense most employers used to, in the face of accommodation requests. There are several important distinctions between the ADA and the Connecticut statute, to every employee should understand. First, the ADA applies only to employers with 15 or more employees. The Connecticut statute amended in 2022 now applies to every employer employer with one or more employees, being among the most broadest anti-discrimination statutes in the country. Second, the Connecticut statute,

Starting point is 00:04:21 a definition of disability may be broader than the ADA, and that provides for leeway and arguing that point under state law. Third, this statute applies standards generally consistent with the ADA law as the courts have confirmed. So if an employee believes their accommodation request was unlawfully denied, may file a complaint with the Connecticut Commission on Human Arts and Opportunities within 300 days of the alleged discriminatory act, or may file or file both, which we always do with the Equal Employment Opportunity Commission. Here's a little tip. File with the EEOC first, and always don't get trapped in the CHRO's nightmare of administrative process. Neither the ADA or the Connecticut statute creates an automatic right to work from home.

Starting point is 00:05:08 The law is more nuanced than that, and anyone who tells you otherwise in either direction is oversimplifying the statutes. The EOC has long maintained in its February 2006 guidance reconfirms that the telework does qualify as a reasonable accommodation only when it enables one of three specific outcomes. Number one, participation in the application process for qualified applicants with disabilities, two, performance of the essential functions of the job, and three, access to equal benefits and privileges of employment, meaning what does everybody else get? Critically tell work or remote work, as it's called. A request is solely for personal benefit, generally a symptom magnification or quality of life improvement without a demonstrable nexus between the employee's ability to perform the

Starting point is 00:05:55 essential functions does not meet that standard. As the EEOC stated, in its new guidance, what the law does not require is accommodations that only mitigate symptoms without also enabling the performance of the essential functions. Again, pretty legal language being used by the agency, but that's what they do. The human reality that this legal framework sometimes struggles to articulate is this. For many disabled employees, the disability does not impair the job. The disability pairs the act of getting to the job and staying there for eight or ten hours under the conditions not designed for their bodies or minds. A skilled accountant with lupus can absolutely prepare a financial statement from her home office, away from fluorescent lights and exposure to the office-borne

Starting point is 00:06:40 infections that can trigger a flare. A talented software engineer with multiple scrosis can write code with extraordinary precision from his home workstation, equipped with ergonomic tools his office would never provide. Without the commute, that leaves him exhausted before the workday begins. The loss framework should be applied with this reality firmly in mind. What are essential functions? The linchpin of every remote work accommodation dispute currently is the concept the essential functions. This is where most cases are one or lost and where both employers and employees need to be most carefully prepared for. The ADA does not define essential function in the statute itself, but the implementing

Starting point is 00:07:21 regulations do say that they are the fundamental job duties of the employment position. The regulations specifically specify that a job function may be essential because the position exists to perform that function, because of the limited number of employees available to perform it, or because it is so specialized that the person is hired specifically to perform it. Evidence of what constitutes an essential function include the employer's written job description, which can change, of the employer's judgment about which functions are essential, which is discretionary. The amount of time spent on the job performing the function, again, discretionary over the employer, the consequences of not requiring the incumbent to perform the function of the terms of the collective bargaining agreement, for example. The practical problem for most employees is that employers control the job description. An employer that wants to resist a remote work accommodation has an obvious interest in characterizing physical presence in the office as essential.

Starting point is 00:08:18 Courts are not always skeptical enough of that characterization, particularly in the post-pandemic error, when many employers have sustained or stiffened their return to office policies. The law requires an individualized assessment always about the employee's actual job duties. Never forget that. It's not a rubber stamp of whatever the job description says. And honestly, arguably, most employers follow that latter approach and saying that they can modify the job description any way they want to, which is true. But again, an individual assessment is always required. The EEOC's February 26 telework guidance should be clarified. On that date, the EOC stated jointly with the Office of Personnel Management that the issue of what's called a frequently asked questions from the federal sector about telework.

Starting point is 00:09:07 In a word of context, the guidance was for. formerly directed at the federal agencies implementing President Trump's January 25 executive order mandating in federal employees return the office and personal work. It invokes the Rehabilitation Act, which governs federal employees, and the federal sector analoged is the federal sector, analog to the ADA, and applies the same subset of standards. You should understand that the Rehabilitation Act of 1973 came first, and the ADA came second, and the ADA model that South after the Rehabilitation Act. Sorry, that's just what the history of the law is. Though formally addressed to federal employers, the 2006 EEOC guidance essentially made it the most

Starting point is 00:09:50 comprehensive and current summary of the EOC's position on telework accommodations for employers, both public and private. Now, there's no blanket denials of telework or remote work accommodations. Employers may not adopt a policy of denying remote work accommodation requests. Every request must be evaluated individually. If this is not happening to you, you have experiencing discrimination. The interactive process must take place. It's literally a conversation between adults, talking about the issue, trying to problem solve the issue. Can you work remotely or not? As the EOC indicated, a distinction must be made between cases where telework is the only effective reasonable accommodation in cases where telework is just one of several options so the employer and employee could use. when there are several reasonable and effective options, you know, the employers don't always choose the one that's going to be in person in that circumstance,

Starting point is 00:10:42 but you want to begin to look at issues of discrimination at play when that happens. Equally true is when telework is the only effect of accommodation. It may be legally required, and that is a fact-intensive inquire that you have to demonstrate and document with your employer. Now, the ADA requires the employers to provide an effective accommodation, not necessarily the employee's preferred one. This happened to law. This has been settled law for decades amongst the federal courts,

Starting point is 00:11:11 where multiple accommodations would effectively enable an employee to perform the essential functions of the job, the employer retains the discretion. You need to understand that, to choose among them. Modify work configurations, adjusted schedules, ergonomic equipment, etc. may all qualify as effective alternatives to full-time remote work. However, this is critical to propose

Starting point is 00:11:33 alternative accommodation must actually be effective. The employer oftentimes will just say, these are the things we're going to agree to, but they're not going to be effective. And you have basically a foundation for what's called discrimination due to what's called failure to accommodate. An employer cannot deny remote work and substitute or substitute a less effective alternative simply to avoid the inconvenience of a remote employee. So that's really the ground rules for how the employer must maintain its activities when you ask for remote work accommodation. Now, a question probably arises about the pandemic and remote work when it happened. Many employees who worked during the pandemic at home, arguably, understandably, understandably,

Starting point is 00:12:13 that the pandemic demonstrated the job can be performed remotely. We all saw that. The EOC's new guidance addressed this specifically and said that temporary remote work implemented during the emergency conditions does not necessarily alter our position's essential functions. employees, employers retain the right to determine that in-person attendance is a genuine requirement of the role. That said, the pandemic president is not entirely irrelevant. Courts and the EOC do consider whether remote work was successfully performed during the pandemic as evidence bearing on whether the essential functions can be performed wrong.

Starting point is 00:12:49 I mean, that's logical and everybody agrees. Previously granted, the accommodations are not permanent, but reevaluation must be individualized. Please note that all accommodations are continually real. evaluate it all the time because work changes and essential functions change. So 26 EOC guidance confirmed that employers may reevaluate previously granted remote work accommodations. And this does happen, folks, when job responsibilities change. And we see these in cases and people say, you know, cry foul and claim discrimination. And they're probably arguably right. And I'll also say that the change of the remote work back to home and denial the combination is a trigger that red flag for

Starting point is 00:13:29 you to start looking at the case as being disgruntified that they're looking to get rid of you because if you take out the accommodation, you can't work. That's pretty simple. The employer will say responsibilities changed, operational needs evolve, or business conditions shift, all bullshit for, you know, we basically want you to leave and you need to document things and demonstrate discrimination. The EEOC strongly cautions agencies against revoking previously granted telework without first making individualized determinations in each case. And the same goes for private employers to do an individualized determination. If the employer is taking your accommodation away, demand in writing via email that they do an individualized assessment. And they probably won't.

Starting point is 00:14:09 And you need a document that they won't. Again, discrimination is, that's a red flag for discrimination. For employees, this means a remote work accommodation already in place has real legal weight. An employer who revokes it without genuine operational justification, without engaging the interactive process, risks a viable discrimination claim. Mental health conditions as a barrier to work. The 2006 guidance from the EEOC addressed the growing category of remote work requests based on mental health conditions. Anxiety, depression, PTSD, OCD, etc. The EEOC confirmed that the ADA does not create a genuine right to be free from all discomfort and distress in the workplace, including anxiety. The relevant question is whether the mental health condition imposes a

Starting point is 00:14:53 material barrier to the employee's ability to work in the office. As the FAQ or the EOC guidance stated common anxiety without more is unlikely to impose a material barrier. Underlying this, what I've just stated, most employees don't understand that there's a high level of office nonsense that you have to endure, and it's not illegal. And but if you can demonstrate that the behavior is rising above a certain threshold and pointing to you your disability, your mental health disability, that's really the task of hand for you as the self-advocate. However, where, Mental health condition does impose a material barrier where office conditions trigger debilitating symptoms that prevent effective work, the employer must consider remote work alongside other available

Starting point is 00:15:41 accommodations. The law does not protect employees from discomfort. It protects them from discrimination when their disability creates a genuine functional impairment that a reasonable accommodation could address. Commuting, that's a big one. It's a hardest one, too. One of the most anguishing gaps in the current accommodation law on the ADA and state law involves employees whose disability does not prevent them from working, but does prevent them from getting to work. Perhaps the most clear statement of current law on this point comes from the 2006 UOC guidance, which holds that in most cases an employer has no duty to help an employee with a disability with the methods and means of their commute to and from work, assuming the employer does not offer such help

Starting point is 00:16:22 to employees without such disabilities. That's the catch. As it stands, as it stands, And the law generally treats the commute as the employer's problem. This is a harsh result for employees with mobility issues that make the driving impossible or dangerous, or for employees whose medical conditions make multi-hour commutes profoundly harmful, particularly when they are entirely capable of performing their work from home once they get there. Courts have been reluctant to require telework based on commuting hardships alone, and the UOC guidance further supports that. The interactive process, you got to understand what this process is.

Starting point is 00:16:56 is your rights and responsibilities, whether you are an employee requesting their remote work accommodation or an employer evaluating one, the interactive process is not optional, is legally required. And you can be sued or get sued or to sue your employer because it didn't happen. And it does happen all the time, meaning that employers don't interact with the interactive process conversation with the employee. Courts have consistently held that the failure to engage in the interactive process in good faith is evidence of an employer's bad phase and where the ultimate denial of the accommodation might have been lawful. So the interactive process works like this. It's very simple. Step one, the employee notifies the employer of a medical condition that requires some change in the way work is performed. The employee need not use the magic words, the ADA or the reasonable accommodation. Any communication indicating a medical need for a workplace change triggers the process. So no magic words required. Step one. Two, the employer may request medical documentation. You should expect that, by the way,

Starting point is 00:18:00 establish in the nature of the disability, the functional limitations that it imposes. Typically, they ask your doctor treating medical provider to state what the limitation is. And most importantly, your burden is to get the doctor to say how the remote work would address those limitations. Don't let the employer decide that for you. You need to argue that point for yourself if this is the only method of doing the work is doing it remotely. Documentation, must be relevant and proportionate. Employers may not use documentation requests as a delay tactic either. So document the crap out of this, emails, get your doctors on board. Here's a little note about doctors. They are slow to help. Some are great, and I applaud that, but we've had circumstances

Starting point is 00:18:44 we're asking in one or two weeks and sometimes it rolls into a month to get a doctor to write a letter because they have to dictate it. I think things are changing. Doctors are aware of their role in this process. Step three, the employer and the employee engaged in a good faith dialogue about available accommodations. This is the interactive process. So you made the request, you documented with this with the medical documentation. Now you're having a conversation. And the employer proposes an alternative to remote work. The employee is the right to explain why the alternative will be ineffective for them.

Starting point is 00:19:16 The employer must generally consider that explanation and respond, not just say no, what they oftentimes do. Step four, the employer makes a decision, either granting the request of accommodation, or offering an effective alternative or denying the request without explanation and if require a documentation of undue hardship. The employer generally, if they deny it, they're going to say it's because the essential functions are that you must be in person, whatever. But it's the red flag zone where you're going to decide for yourself, is my employer discriminating against me or not? And it's when you hear that answer. So look for it in what they're saying by words, have them put it in writing very, very important.

Starting point is 00:19:57 The EEOC suggests that in some cases, employers may require an employee to attempt an in-office accommodation before concluding is ineffective. If it proves ineffective in practice, the employer must then reconsider remote work. Try that angle if you want to demonstrate that it's not going to work, but then you have to demonstrate that whatever metrics are measuring your performance failed,

Starting point is 00:20:20 and it's all because of, of the actual being in person and versus being at remote working from home. The return to office wave that most employers have demanded and disability rights, the context in which remote work accommodations requests are arising in 2006 cannot be ignored. A broad return to office movement accelerated by Trump's January 25th, 2025, Executive Border directing federal employees backed in-person work has swept across both public and private sectors, major employers, are implementing strict return to office mandates where they were getting a 50% rate of return beforehand, while the little flexibility and minimal individualized analysis about remote working situations. For disabled employees, this wave is not on minor inconvenience. It is a direct threat to accommodations that may have been in place, effective for years.

Starting point is 00:21:11 And the EOC's guidance says was triggered, itself triggered by the dynamic, the commission by this dynamic, and the commission issued the guidance. direct response to concerns by federal employees with disabilities were being swept under the carpet regarding this blanket return to office mandate. Several legal principles constrain the return to office movement's impact on disabled employees. First, a blanket return to work return to the office policy is not a defense to an individualized accommodation claim. The employer can simply, it cannot simply say, everyone must be in the office and consider its ADA obligations discharge. The AD requires individualized assessment, as I said before. Second, where remote work was granted as a disability accommodation, not merely as a general

Starting point is 00:21:55 pandemic policy, the employer cannot revoke it without engaging in the interactive process, and they have to talk to you about it. I had to say it's something obvious. Most employers do not talk about this. We get these cases in, and the employers have made a decision with no discussion whatsoever and mandate it, and you know what's happening. They just want the person to quit. So it's a pattern that repeats itself over again.

Starting point is 00:22:17 Employers, shame on you for doing that. Employees, document the shit out of that, write emails, complain internally, and do whatever you do. But the writing is on the wall when you see that type of messaging that you've got to return to work. And there's no conversation about interactive process. I think that's an example of the employer being, you know, the elephant in the room and dictating whatever they want to do because they are the employer attitude. And that gets the employers in trouble.

Starting point is 00:22:39 And we're here to stop it and notify them. Employers, so you understand, they're functioning. on this kind of idea that you don't have the guts to advocate for yourself and to protest, or you don't have the finances to deal with it, meaning hire an attorney. So that's a statistical analysis for you, what most employers have done for the past 30 years or more. That's the basis of discrimination. Employers take a risk and see how far they can get away with it. Third, the return to work office policies that disproportionately harm employees with certain disabilities, chronic fatigue, multiple mobility impairments, severe mental health conditions, make, and there are examples,

Starting point is 00:23:16 may create disparate impact liability if they are applied without an accommodation analysis. So there's that aspect to it. Even though the EEOC doesn't follow the disproportionate impact analysis and longer, the courts still do, and you need to look for that analysis. And just so you understand, disproportionate analysis is that some type of policy neutral in its face is having a disproportionate impact on one group, meaning disabled employees in this instance. Practical guidance requests accommodation and writing. Do not rely on verbal communications. Put your request in writing and an email is sufficient,

Starting point is 00:23:51 stating that you have a medical condition and a need to change your work in arrangement. You do not need to diagnose yourself or use legal terminology. Keep a copy of everything and keep repeating the same request in writing until you get an answer. Get your medical provider involved. The strength of your accommodation requests will depend significantly on the quality of your medical documentation. That's no joke. You have to, it's your burden to demonstrate that of that type of evidence. Work with your doctor, medical provider to do that. And you need to show the diagnosis, how your condition functionality limits your ability

Starting point is 00:24:23 to work in the office. That's what we're talking about, remote work, and how the remote work would address these limitations and enable you to perform your job functions. I mean, that's the analysis right there. And that's in the medical provider's documentation. So you're asking your doctor, write that. The diagnosis, how your condition function limits your ability to work in the office, and how remote work addresses those limitations enables you to perform your job. Get your doctor and say that you're on the money. Generic letters say only my patient cannot work in the office are insufficient, so you need to get into the specifics of it. Know your essential functions. Just do this little task. You go to work every day, doing the last five years, what are the top five

Starting point is 00:25:03 things you do? And that's the essential function of your job. Everything else beyond, beyond the Beyond that, our secondary and tertiary type of like-beating function. Write down the description that you follow every single day that your employer is requiring of you. Your employer may have a job description, but you might find that there's some job duties you never do just because it's a job description. If they're not complaining about you're not doing those other things, your real job is what you actually do.

Starting point is 00:25:25 So just write it down. You follow the same tasks every day and just document that. And engage the interactive process with the employer. If your employer proposed an alternative accommodation rather than full-time remote work, engage with it seriously, and document your request, your response specifically. If the alternative will not work for your disability, explain precisely why with medical support, if possible. In courts and the EOC look unfavorably on employees who refuse alternatives without explanation. Don't sit there and cry the victim, as I always say, you know,

Starting point is 00:25:57 be your own advocate and answer those questions that you would have, you anticipate that people want answers to why you say you have to do this. Just don't conclude. I need this. Follow deadlines. Don't delay if you need to file the administrative complaints. The EOC charge must be filed within 300 days of the discriminatory act. The H. Roe, the agency in Connecticut must be filed within 300 days. New York State Division of Human Rights complaints must be filed within three years as amended in this past year. New York City Commission Human Rights must be filed within three years as well. These are not inflexible deadlines or flexible deadlines. They are rigid and you have to comply with them

Starting point is 00:26:37 in order to have a claim. So what should employers do right now? Legal obligations on both the ADA and state law are clear. Here is the employers in Connecticut, New York. You know, focus their attention. Review your every existing remote work accommodation and confirm it was properly processed through the interactive process. If accommodations were granted informally, as many were during the pandemic, establish a formal record before implementing any return to office mandate, conduct an individualized assessment of each employee with an existing remote work accomplice. The EEOC cannot be clearer. Blanket revocations are legally indefensible. Train HR personnel. Please do that. And managers, most importantly, on the interactive process. That's where the whole statute breaks down when managers don't know what the hell they're doing. And they don't know how to talk about the interactive process because no one's telling them. And employers, it's your burden, your job to tell your managers in HR that you've got to talk to your employees who have disabilities and request accommodations. So go through the process. Don't ignore your legal obligation to your employees, the very people who make your company your company.

Starting point is 00:27:44 So with that said, I wanted to do this podcast about remote working and give you an update on it. That is really the nuts and bolts of it. I'm not going to repeat myself, but document things. I guess I will read myself. Document things. Engaging an interactive process. Being an advocate against your employer, do not trust. your employer. Again, you work in a private government. They control all. It's like walking to a

Starting point is 00:28:09 casino. You know, you know you're going to lose. You just got to try to do your best. The odds are against you, but document things. Hopefully, maybe you have an employer like me who actually cares about the actual obligations of being an employer and about employees' rights and about working because that's what we're here for. So for that said, thank you. Allow me for being of service. Have a great day. Hey, it's Mark. And thank you for listening to this episode of the employees file by by guide. If you'd like to be interviewed for our podcast and share your story about what you're going through at work and do so anonymously, please send me an email at m-C-R-E-Y at C-A-P-C-C-Law.com. And also, if you like this podcast episode and others like it, please

Starting point is 00:28:49 leave us a review. It really does help others find this podcast. So leave a review on Apple or Spotify or wherever you listen to this podcast. Thank you very much. And I'm glad to be a service to you.

Employee Survival Guide® - Remote Work As A Disability Accommodation

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