The Status of Remote Work as a Reasonable Accommodation in Wisconsin After the COVID-19 Pandemic
Mary E. Nelson and Agatha K. Raynor, Crivello Carlson, S.C.
As employers move beyond the pandemic and reopen offices, questions linger as to whether employers will require employees to return to in-person work and, when they do, whether continued remote work may be a required reasonable accommodation for those employees who have a qualifying disability under the Americans with Disabilities Act (ADA) or the Wisconsin Fair Employment Act (WFEA).
Although the COVID-19 pandemic brought with it many new challenges and uncertainty for employers, the basic legal tenets of evaluating a disability claim under the ADA and WFEA did not and have not changed. However, because the reasonable accommodation inquiry involves a fact-specific analysis, as emergency health orders are lifted, and as the status/severity of the pandemic continues to hopefully improve, the reasonable accommodation analysis also necessarily changes because it must be made in the context of present circumstances. Thus, an accommodation that may have been considered reasonable during the height of the pandemic may no longer be considered reasonable. Regardless, employers must use caution and must continue, at all times, to undertake the full and proper analysis, which includes the following:
1. Is the employee an individual with a disability under the ADA and/or WFEA?
2. Can the employee perform the essential functions of the job, with or without accommodation?
3. Is the accommodation reasonable or does it create an undue hardship?
This article addresses each of these steps, focusing on traditional well-established legal principles as applied to the circumstances of the COVID-19 pandemic.
I. Disability
As a threshold matter, the first question to be addressed is whether the particular medical condition (or mix of conditions) qualifies as a disability. The ADA defines a disability as a “physical or mental impairment that substantially limits one or more major life activities.”[1] An individual is considered disabled under the ADA if the person (1) has an actual impairment “that substantially limits one or more major life activities;” (2) has a “a record of such impairment;” or (3) is “regarded as having such an impairment.”[2] Similarly, the WFEA defines an “individual with a disability” as a person who (1) has a physical or mental impairment which makes achievement unusually difficult or limits the capacity to work; (2) has a record of such an impairment; or (3) is perceived as having such an impairment.[3]
Whether the medical condition, such as COVID-19 and/or post-COVID symptoms, rises to the level of “disability” under the ADA depends on whether the condition(s) substantially limits a major life activity, such as breathing, speaking, walking, etc.[4] This question involves a very fact-intensive inquiry which may require medical information regarding how the specific condition(s) affects the particular individual employee. The EEOC confirmed that during the pandemic employers could still engage in the interactive process and request information from an employee about why an accommodation is needed.[5] In its COVID guidance, the EEOC stated that “if it is not obvious or already known, an employer may ask questions or request medical documentation to determine whether the employee’s disability necessitates an accommodation.”[6] The EEOC confirmed that this inquiry may include questions regarding: “(1) how the disability creates a limitation, (2) how the requested accommodation will effectively address the limitation, (3) whether another form of accommodation could effectively address the issue, and (4) how a proposed accommodation will enable the employee to continue performing the ‘essential functions’ of his [or her] position (that is, the fundamental job duties).”[7]
Although there is limited precedent addressing the issue of “disability” during the COVID-19 pandemic, courts that have addressed the issue have recognized that the inquiry continues to involve a fact-specific analysis and that the existence of the pandemic and its related dangers must become part of that fact-specific inquiry. For example, in July 2020, a Louisiana district court held that the 98-year-old plaintiff, who suffered from significant, inoperable, aortic valve disease and systolic heart failure and had a permanent pacemaker which substantially limited the operation of his cardiovascular system, was disabled under the ADA.[8] The court noted that its holding resulted, “in substantial part, from the existence of the COVID-19 pandemic in our nation, and the existence of [plaintiff’s] obvious comorbidities,” confirming that the “application of these laws to these facts must be based upon a factual analysis that considers the totality of [plaintiff’s] health circumstances in conjunction with one’s social circumstances”:[9]
Call it a totality of the circumstances evaluation. The determination of a qualifying disability in this case cannot be looked at in a vacuum. . . . [E]ven counsel for the [defendant] conceded that the advent of the pandemic has turned virtually everything we do on its head. . . . In sum, consideration of [plaintiff’s] documented serious underlying medical situation, in light of the pandemic’s existence, is the proper way to make the disability determination here.[10]
The court expressly limited relief to the time period covered by the Louisiana Governor’s COVID-19 emergency orders.[11]
A Massachusetts federal court came to a similar conclusion in a case involving a plaintiff who suffered from “moderate asthma,” noting that the plaintiff “is likely to prevail on their contention that their asthma is a disability, at least during the COVID-19 pandemic.”[12] Thus, if other courts follow this line of thinking, employees who may have been considered “disabled” under the ADA at the height of the pandemic may no longer be considered disabled as the status of the pandemic improves.
Another potential issue is whether an employee can be considered disabled based on the fact that an employee had COVID-19 and may therefore suffer long-term or future impairments/effects. Although not a case involving COVID, in EEOC v. STME, LLC,[13] the Eleventh Circuit stated that the possibility that an employee might, in the future, contract the Ebola virus was not enough to show an impairment under the ADA because “even construing the statute broadly, the terms of the ADA protect persons who experience discrimination because of a current, past, or perceived disability – not because of a potential future disability that a healthy person may experience later.”[14]
II. Reasonable Accommodation
Once a disability has been established, the next question is whether the employee can perform the essential functions of the job with or without a reasonable accommodation. Pursuant to the WFEA, a reasonable accommodation “is any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities.”[15] “The employer has an obligation to engage in an ‘interactive process’ aimed at determining the precise job-related limitations imposed by a disability and how those limitations could be overcome with a reasonable accommodation.”[16] “[T]he failure to engage in an interactive process does not, on its own, constitute a violation of the law.”[17]
There is no requirement, however, to provide a reasonable accommodation when the disability is only perceived. “That is because, where it is not established that there was a disability, or limitations, or performance difficulties stemming from such limitations, any such analysis would be entirely artificial and speculative.”[18]
The ADA describes potential reasonable accommodations to include (1) making the current workplace “readily accessible to and usable by individuals with disabilities;” (2) “job restructuring;” (3) modified work hours; (4) “reassignment to a vacant position;” (5) purchase or modification of equipment; (6) “modification of examinations, training materials or policies;” (7) providing readers or interpreters; and (8) “other similar accommodations for individuals with disabilities.”[19]
Under the ADA, remote work may qualify as a reasonable accommodation in some, but not all circumstances since many jobs cannot successfully be performed from home. This, however, must always involve a fact-specific analysis of present circumstances. In a 1995 decision addressing remote work as a potential reasonable accommodation, the Seventh Circuit confirmed that an “employer is not required to allow disabled workers to work at home, where their productivity inevitably would be greatly reduced.”[20] In Vande Zande v. State of Wisconsin Department of Administration,[21] the court acknowledged that many jobs cannot be performed from home, particularly where supervision and/or collaboration are required:
Most jobs in organizations public or private involve team work under supervision rather than solitary unsupervised work, and team work under supervision generally cannot be performed at home without a substantial reduction in the quality of the employee’s performance.[22]
The Seventh Circuit noted that “[t]his will no doubt change as communications technology advances.”[23] Twenty-four years later, the Seventh Circuit repeated this acknowledgement when it held that “[t]echnological development and the expansion of telecommuting . . . since Vande Zande likely mean that such an accommodation is not quite as extraordinary as it was then. That inquiry is context-specific; a work-from-home arrangement might be reasonable for a software engineer but not for a construction worker.”[24] Thus, even with advances in technology, courts have acknowledged that some jobs simply “often require face-to-face collaboration.”[25] Accordingly, each situation must be evaluated on an individual basis. “Litigants (and courts) in ADA cases would do well to assess what’s reasonable under the statute under current technological capabilities, not what was possible years ago.”[26]
Although COVID-19 was certainly a new and unknown condition, the EEOC, throughout the pandemic, has confirmed that basic ADA principles concerning the interactive review process apply to the accommodation process during the pandemic and post-pandemic. On May 28, 2021, the EEOC reaffirmed application of the basic principles in its “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,”[27] and specifically answered questions regarding remote work as a reasonable accommodation. According to the EEOC, remote work may, but does not necessarily, qualify as a reasonable accommodation under the ADA:
D.9. Are the circumstances of the pandemic relevant to whether a requested accommodation can be denied because it poses an undue hardship? (4/17/20)
Yes. An employer does not have to provide a particular reasonable accommodation if it poses an “undue hardship,” which means “significant difficulty or expense.” As described in the two questions that follow, in some instances, an accommodation that would not have posed an undue hardship prior to the pandemic may pose one now.
D.15. Assume that an employer grants telework to employees for the purpose of slowing or stopping the spread of COVID-19. When an employer reopens the workplace and recalls employees to the worksite, does the employer automatically have to grant telework as a reasonable accommodation to every employee with a disability who requests to continue this arrangement as an ADA/Rehabilitation Act accommodation? (9/8/20; adapted from 3/27/20 Webinar Question 21)
No. Any time an employee requests a reasonable accommodation, the employer is entitled to understand the disability-related limitation that necessitates an accommodation. If there is no disability-related limitation that requires teleworking, then the employer does not have to provide telework as an accommodation. Or, if there is a disability-related limitation but the employer can effectively address the need with another form of reasonable accommodation at the workplace, then the employer can choose that alternative to telework.
To the extent that an employer is permitting telework to employees because of COVID-19 and is choosing to excuse an employee from performing one or more essential functions, then a request—after the workplace reopens—to continue telework as a reasonable accommodation does not have to be granted if it requires continuing to excuse the employee from performing an essential function. The ADA never requires an employer to eliminate an essential function as an accommodation for an individual with a disability.
The fact that an employer temporarily excused performance of one or more essential functions when it closed the workplace and enabled employees to telework for the purpose of protecting their safety from COVID-19, or otherwise chose to permit telework, does not mean that the employer permanently changed a job’s essential functions, that telework is always a feasible accommodation, or that it does not pose an undue hardship. These are fact-specific determinations. The employer has no obligation under the ADA to refrain from restoring all of an employee’s essential duties at such time as it chooses to restore the prior work arrangement, and then evaluating any requests for continued or new accommodations under the usual ADA rules.
D.16. Assume that prior to the emergence of the COVID-19 pandemic, an employee with a disability had requested telework as a reasonable accommodation. The employee had shown a disability-related need for this accommodation, but the employer denied it because of concerns that the employee would not be able to perform the essential functions remotely. In the past, the employee therefore continued to come to the workplace. However, after the COVID-19 crisis has subsided and temporary telework ends, the employee renews her request for telework as a reasonable accommodation. Can the employer again refuse the request? (9/8/20; adapted from 3/27/20 Webinar Question 22)
Assuming all requirements for such a reasonable accommodation are satisfied, the temporary telework experience could be relevant to considering the renewed request. In this situation, for example, the period of providing telework because of the COVID-19 pandemic could serve as a trial period that showed whether or not this employee with a disability could satisfactorily perform all essential functions while working remotely, and the employer should consider any new requests in light of this information. As with all accommodation requests, the employee and the employer should engage in a flexible, cooperative interactive process going forward if this issue does arise.[28]
Even if an employee is allowed to work from home, the employer can still hold the employee to legitimate employment and performance expectations, including punctuality and attendance. In Taylor-Novotny v. Health Alliance Medical Plans, Inc.,[29] the employer allowed employees to work at home pursuant to an internal “Work at Home” policy. However, the court stated that allowing employees to work from home, in and of itself, “hardly establishes that punctuality and regular attendance are not essential functions of [a] position.”[30] In that case, the internal policy expressly required employees to follow an agreed-upon work schedule, to be accessible during that schedule, to attend required meetings either by telephone or in person, and employees were evaluated on “Attendance and Punctuality.”[31] Plaintiff submitted a note from her physician stating that she suffered from “very poor energy and stamina” and suggested a “flexible work schedule that would allow her to work efficiently when she is doing well but then allow rest periods when she is having a bad day.”[32] The court confirmed that the ADA provides that “consideration shall be given to the employer’s judgment as to what functions of a job are essential.”[33] The employer considered it essential that employees be accessible at regular times to supervisors, staff, and customers, “regardless whether an employee was working from the [employer’s] office or from home.”[34] Accordingly, the court held that, based on the evidence in the record, it “cannot conclude that [plaintiff] could satisfy the essential function of regular attendance and, therefore, is not a qualified individual with a disability entitled to protection under the ADA.”[35] Furthermore, the court noted that even if plaintiff was a “qualified individual with a disability” under the ADA, she would still be required to establish that she was meeting her employer’s legitimate expectations.[36]
Moreover, if the business operation or demands change, an existing accommodation of remote work may no longer be considered reasonable under present circumstances if the essential job functions change. The court addressed this issue in Bilinsky v. American Airlines, Inc.[37] In Bilinsky, the employer accommodated the plaintiff’s disability for years by allowing her to work from home. However, after a merger, the employer determined that the merger “fundamentally changed the position’s nature and that consistent, physical presence on site became an essential function of the position” such that remote arrangements were insufficient to meet business demands.[38] Thus, in that case, remote work was reasonable at one time, but duties of the position changed such that physical presence became an essential function of the job. Under this analysis, a remote work accommodation which was reasonable during the pandemic may no longer be considered reasonable, particularly if the employer excused or changed essential job functions during the pandemic. The EEOC has stated that “the fact that an employer temporarily excused performance of one or more essential functions” because of COVID-19 does not mean that the employer has permanently changed a job’s essential functions.[39]
III. Undue Hardship
The final consideration is whether an undue hardship can be established such that the employer is not required to provide the reasonable accommodation, which could include allowing an employee to telework from home. According to the ADA, a “hardship” is defined as action “requiring significant difficulty or expense, when considered in light of the [following] factors:”
1. The “nature and cost” of the needed accommodation;
2. The “overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility;”
3. The “overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities;” and
4. The “type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity.”[40]
Similarly, the WFEA mandates that “if an accommodation is reasonable and can be provided by the employer without creating a hardship for its business, the Wisconsin Fair Employment Act contemplates that it do so.”[41]
IV. Conclusion
In conclusion, the ADA and WFEA provide continuity to the disability accommodation evaluation. As the pandemic, and the cases of Silver, Vande Zande, Taylor-Novotny and Bilinksy, have shown us, there always needs to be a fact-specific interactive evaluation that is based on present circumstances. What may appear to be an extraordinary request today may be commonplace 24 years from now.[42]
Author Biographies:
Mary E. Nelson is a shareholder and a member of the Board of Directors at Crivello Carlson, S.C. and devotes much of her practice to representing employers before state and federal administrative agencies, and in state and federal courts. In addition to representing employers in adversarial proceedings, Mary also performs workplace investigations, and counsels employers on all types of employment-related issues.
Agatha K. Raynor is a shareholder with Crivello Carlson, S.C. and concentrates her practice in employment law. In addition to representing employers in litigation before administrative agencies and federal courts, Aggie also regularly advises clients on compliance, best practices and risk management in all areas of employment law, including accommodation of disabilities, handling harassment complaints, FMLA compliance, reductions in force, separation agreements, and implementing effective employment policies and practices. In addition, Aggie conducts corporate training to employees, managers, and industry groups on various employment-related issues.
[1] 42 U.S.C. § 12102(1).
[2] 42 U.S.C. § 12102(1); see also Krocka v. City of Chicago, 203 F.3d 507, 512 (7th Cir. 2000).
[3] Wis. Stat. § 111.32(8)(2019-20).
[4] 42 U.S.C. § 12102 (2).
[5] EEOC, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” D.5 (last updated May 28, 2021).
[6] Id., D.6.
[7] Id.
[8] Silver v. City of Alexandria, 470 F. Supp. 3d 616, 622 (W.D. La. 2020).
[9] Id. at 622.
[10] Id. (emphasis added).
[11] Id. at 625.
[12] Peeples v. Clinical Support Options, Inc., 487 F. Supp. 3d 56, 62 (D. Mass. 2020) (emphasis added).
[13] EEOC v. STME, LLC, 938 F.3d 1305, 1315 (11th Cir. 2019).
[14] Id. at 1316.
[15] Alamilla v. City of Milwaukee (LIRC June 28, 2013); Ison v. School District of Crandon (LIRC Sept. 28, 2020).
[16] Schulz v. Wausau School Dist. (LIRC April 30, 2012).
[17] Id.
[18] Hendon v. Wis. Bell (LIRC Nov. 13, 2014).
[19] 42 U.S.C. § 12111(9).
[20] Vande Zande v. State of Wis. Dep't of Admin., 44 F.3d 538, 545 (7th Cir. 1995).
[21] Id.
[22] Id. at 544.
[23] Vande Zande, 44 F.3d at 544.
[24] Bilinsky v. Am. Airlines, Inc., 928 F.3d 565 (7th Cir. 2019).
[25] Yochim v. Carson, 935 F.3d 586 (7th Cir. 2019) (quoting Bilinsky, 928 F.3d at 573).
[26] Bilinsky, 928 F.3d at 573.
[27] Supra note 5.
[28] Id., D.9, D.15 & D.16.
[29] 772 F.3d 478 (7th Cir. 2014).
[30] Id. at 490.
[31] Id.
[32] Id.
[33] Id. at 490.
[34] Id.
[35] Id.
[36] Id. at 490–91.
[37] 928 F.3d 565, 574, (7th Cir. 2019).
[38] Id. at 570 & 574.
[39] The EEOC has stated as follows: “Let's assume that an employer grants telework to employees for the purpose of slowing or stopping the spread of COVID-19. After such public health measures are no longer necessary, does the employer automatically have to grant telework as a reasonable accommodation to every employee with a disability who wishes to continue this arrangement? The answer is of course no.” EEOC, “Transcript of March 27, 2020 Outreach Webinar,” Question 21.
[40] 42 U.S.C. § 12111(10).
[41] Cave v. Milwaukee County (LIRC Jan. 30, 2014).
[42] Bilinsky, 928 F.3d at 573.
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