Thanks to COVID-19, the US Census estimates about 27 million Americans worked from home in 2021. Many employers who wouldn’t allow people to work from home had to reverse their policies to stay open. Will this open the door to more widespread work-from-home accommodations for disabled employees?

Under New Jersey and federal law, disabled workers must perform, with or without reasonable accommodations and essential job functions. Depending on the disability and a job’s essential functions, a reasonable accommodation may be working from home, as long as it doesn’t pose an undue hardship to the employer. Not providing a reasonable accommodation to a disabled employee may be unlawful discrimination.

 

What is a Disability?

Under the federal Americans With Disabilities Act (ADA), a person with a disability is someone with a mental or physical impairment substantially limiting a major life activity, they have a record of such an impairment or is regarded or perceived as having such an impairment.

 

What is a Major Life Activity?

A major life activity can be:

• Caring for oneself
• Performing manual tasks
• Seeing
• Hearing
• Fighting off infections
• Sleeping
• Walking
• Standing
• Sitting
• Reaching
• Speaking
• Learning
• Concentrating
• Thinking
• Interacting with others
• Working

The ADA doesn’t list what’s covered. That’s left to the courts to decide in particular cases.

 

What is a Substantial Limitation?

An impairment, according to the federal Equal Employment Opportunity Commission (EEOC), which enforces the ADA, need not be severely or significantly limited to major life activity to be substantially limiting. Deciding if an impairment substantially limits a major life activity, compared to most people, is decided case-by-case. It doesn’t usually require scientific, medical, or statistical evidence, but it may be used if appropriate in a particular case.

 

What is a Reasonable Accommodation?

The EEOC states two of the three categories of reasonable workplace accommodations include changes:

• To the how a job is performed, the work environment, or the circumstances under which the position is usually performed, that allow a worker with a disability to perform the essential functions of the job
• Allowing a worker with a disability to obtain the same privileges and benefits of employment as are enjoyed by similarly situated, non-disabled co-workers

A reasonable accommodation must be tailored to the individual, their needs, and the employer’s needs. The employee should propose the accommodation, the employer can suggest an alternative, and the parties should engage in a discussion to work out any differences.

If the employer is unwilling to give what the employee requests but proposes an alternative, the employee may be better off accepting it and giving it a try. The employee can ask for a more effective change if the accommodation fails.

 

What is an Essential Job Function?

It is a fundamental function of a position. It’s not something that can be delegated to another and is a reason the job exists.

 

What is an Undue Hardship?

An undue hardship is something causing significant cost or difficulty.

 

How Has This Played Out in the Workplace?

You may benefit from a shortage of job applicants, communications technology, and the fact organizations survived, if not thrived, while employees worked from home. After nearly three years, when working from home has become the norm, it should be harder for an employer to deny a disabled employee’s request to work from home.

If your experience and skills are difficult or expensive to replace, your employer may be more flexible in accommodating your request. Whatever downside they may see with you working remotely, it could be less costly or disruptive than hiring a replacement.

Thanks to the internet, communications between employees can be nearly seamless. Between video conferencing, text messages, emails, and software like Slack, all that’s missing is personal presence. But some employers value that more than others.

An employer may prefer workers to be physically together, but that doesn’t mean working from a particular location is an essential job function. If remote working was common or universal in the past without causing significant disruptions, your employer should have a hard time establishing the claim being physically located somewhere in a given time frame is essential.

 

What Kingston Law Group Can Do for You!

The Kingston Law Group helps disabled employees attain the accommodations they need. We can help you negotiate the issue with your employer and pursue legal options if they refuse to be reasonable.

Contact Kingston Law Group by calling us at 609-683-7400 or emailing us (hisaacs@kingstonlawgroup.com) to schedule a reduced fee initial consultation. We can talk to you on the phone, by using a Zoom call, or in person — if you’re vaccinated against Covid-19. We take credit card payments, and you can schedule an appointment from 9 a.m. to 5:30 p.m., Monday to Friday. We can also schedule evening appointments during the workweek by special arrangement only.

Contact us today. You’ll be glad you did