Always Stay Vigilant: How New Tech in The Workplace Turns “Reasonable Accommodations” Under The ADA into An Ever-Moving Goalpost for EmployersOctober 7, 2020
While the heartache and disruption exhibited by the COVID-19 pandemic has caused irreparable harm in many American lives, there might be at least one positive consequence which will leave many American’s better off than they were pre-COVID. Businesses across the country were forced to close their doors as stay-at-home orders left non-essential businesses empty; however, other businesses took the opportunity to exhibit remarkable flexibility and utilize new technology to facilitate work-from-home environments. In a way, working from home functioned as a sort of practical exercise on exactly how productive employees can be, without ever setting foot in an office, so long as they are well equipped. According to one Stanford study, “an incredible 42 percent of the U.S. labor force” is now working from home full-time. Some additional benefits noted include reducing the cost of overhead by removing the need for an office, increasing efficiency by reducing or eliminating office meetings, and happier employees with commute times reduced to the seconds it takes to power-on a laptop.
But as mentioned, there might be a group of Americans out there with still more to gain from this work-from-home exercise. Under the Americans with Disabilities Act (ADA) § 12112(b)(5)(A), employers with 15 or more employees are charged with the duty to provide reasonable accommodations to employees with disabilities, so long as the accommodations necessary do not pose an undue hardship to the employer. At the outset of the COVID-19 pandemic, many questioned what constituted reasonable accommodations for those deemed “high risk” due to underlying medical conditions, and how to balance any accommodations in a way that respected employee privacy by not branding them with a scarlet letter-type accommodation, such as physical barriers surrounding their workstation. Interestingly enough, working from home proved to be a perfect cure for this headache, because it allowed employees the opportunity to socially distance without negatively impacting productivity or breaking the bank. But those factors together—accommodating employees, equal productivity amongst coworkers, and financial and practical feasibility—strike at the heart of the ADA’s primary objective. So why not apply the work-from-home model beyond COVID-19’s immediate disruptions? Further, how is this a change from the previous understanding of “reasonable accommodations,” and how will technology continue moving the goalpost for employers to maintain ADA compliance?
Technology’s Direct Influence on the Workplace
The practical impact of COVID-19 is better understood as compelling wide-spread implementation of technology to accommodate productive employment, as opposed to a direct catalyst for technological development. Indeed, technology has revolutionized the workplace for some time now, particularly in ways beneficial to employees protected by the ADA. Speech-to-text software has empowered amputees to operate computers, solar power and battery storage technology has increased the range of travel for the mobility challenged, and virtual reality (VR) has the potential to unlock countless additional opportunities.
This natural, technological diffusion turns what was once an undue hardship into a typical day at the office.
Although the potential might seem great, many employers falling within the ADA’s authority lack the financial means and technological capacity to implement many of these systems. Furthermore, additional training is required for employees interfacing with a coworker utilizing advanced technology tailored to disabilities. Nevertheless, as technology becomes more accessible and familiar, throughout the workplace, using technology such as VR or speech-to-text will be more familiar amongst workers and cheaper for employers to acquire. This natural, technological diffusion turns what was once an undue hardship into a typical day at the office. Technological diffusion often happens in large snaps and expansions, as opposed to a gradual dispersion. Americans are living through one of those large expansions now, in 2020—the wide-spread adoption of videoconferencing and the technological capacity to effectively support use on a reliable basis. This newly adopted capability manifests a shift toward work-from-home as a reasonable accommodation, provided the employee can perform their essential job functions.
The Equal Employment Opportunity Commission (EEOC) provides guidance on working from home as a reasonable accommodation, explaining that such an accommodation will depend on factors including the ability to perform essential functions, adequate supervision, and the ability to provide an employee with necessary tools in the home. Additionally, the EEOC explains that employers must evaluate for undue hardship on a case-by-case basis. Undue hardships are not solely economic, but may also include accommodations that are “unduly extensive, substantial, or disruptive, or those that would fundamentally alter the nature or operation of the business.” As discussed, teleworking has proven its viability in a large portion of the U.S. workforce, with roughly 42 percent working from home. Many employers claiming that work-from-home is undue hardship based solely on economic means will likely find themselves in a precarious position should employees request accommodations later denied, and then challenge the refusal to accommodate. This is because many employers are capable of annually receiving up to a $2,400 Work Opportunity Tax Credit for each qualifying employee who works at least 400 hours during the tax year, according to the Internal Revenue Code § 51, and the EEOC. Since this is a tax credit, and not a tax deduction, employers enjoy this benefit on a dollar-for-dollar basis, leaving their bottom lines undisturbed by footing the bill to provide accommodations. Those funds could go toward purchasing a laptop, providing in-home internet services, and potentially even additional accessibility equipment for employees requiring accommodations.
Wide-spread adoption of work-from-home marks a potential shift in what the Department of Justice will tolerate in ADA challenges regarding denied accommodations for undue hardship. COVID-19 forcing employers to embrace working from home in order to protect profitability should be heeded as a sign that telework is a more reasonable accommodation now than ever. While it is unclear when the next large-scale snap of technological diffusion will occur, employers must always stay vigilant to reassess how technology has changed their workplaces and the practicability of reasonable accommodations for those in need.