Telework In The New Normal: How Reasonable Is It?

February 1, 2024

Federal laws, such as the Americans with Disabilities Act (“ADA”), Rehabilitation Act[1], and Pregnant Workers Fairness Act (“PWFA”)[2], and similar state laws require certain employers to provide reasonable accommodations for employees’ known limitations related to a disability or pregnancy.  Requests for teleworking arrangements as a reasonable accommodation did not begin with the COVID-19 pandemic, but they are certainly one of its lasting legacies.  Since such requests have skyrocketed, courts have found telework to be a reasonable accommodation more often, but not as often as one might assume following the pandemic, which demonstrated that many businesses and organizations had the ability to function with a large part of their workforces teleworking

The ADA guides the assessment of whether an accommodation is reasonable under the above federal laws. The ADA states:

The term “reasonable accommodation” may include (A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and (B) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.

42 U.S.C. § 12111(9).

Per a Bloomberg Law analysis of the issue, between 2017 and 2019, courts ruled in favor of employers denying telework as a reasonable accommodation at a rate of 70%. Between 2021 and 2023, that percentage fell to 60%.

Significant to employers in Pennsylvania is Oross v. Kutztown University, wherein the Court examined the question of telework as a reasonable accommodation.  The plaintiff, a tenured professor at Kutztown University, underwent a heart transplant in February 2021 which required him to take life-long immuno-suppressants.  In the spring, Kutztown required faculty to return to in-person instruction at the start of the fall semester.  Given his immune-suppressed state, the professor asked to conduct his courses online to reduce the risk of contracting COVID-19, but Kutztown denied the request.  The plaintiff filed suit, alleging various violations under and related to the Rehabilitation Act.  This led to a lawsuit for, among other things, Kutztown’s denial of the professor’s request. The Court said that a jury did not even need to decide the issue because the “plaintiff could have easily been accommodated without causing undue burden” to Kutztown. In other words, the professor won before trial.

In order to establish a claim for failure to accommodate, plaintiffs are required to prove that they can perform the essential functions of the job with or without a reasonable accommodation.[3]  In assessing whether telework was a reasonable accommodation in this instance, the Court drew from its analysis of whether the plaintiff could perform the essential functions of the job.  The Court noted that the EEOC Regulations provide examples to assist courts with determining whether a plaintiff can perform the essential functions of the job.  They include:

  1.  the employer’s judgment as to which functions are essential;
  2. written job descriptions prepared before advertising or interviewing applicants for the job;
  3. the amount of time spent on the job performing the function;
  4. the consequences of not requiring the incumbent to perform the function;
  5. the terms of a collective bargaining agreement;
  6. the work experience of past incumbents in the jobs; and/or
  7. the current work experience of incumbents in similar jobs.[4]  In support of its finding that the plaintiff could perform the essential functions of the job, the Court pointed to the nature of the plaintiff’s job functions and noted that there was nothing in any job descriptions, course descriptions or the collective bargaining agreement that suggested that in-person teaching was essential to the plaintiff’s position.  Further, the Court placed great weight on the fact that Kutztown allowed professors, including the plaintiff, to teach online courses prior to 2020 and transitioned to full-time remote learning during 2020. 

Employers should be cognizant of the possible trend toward ruling in favor of plaintiffs more in these cases as they engage in collective bargaining and fashion job descriptions and policies. Though courts consider an employer’s judgment regarding whether a position requires physical presence, an employer’s determination cannot be conclusory.  Employers should carefully consider whether a position requires physical presence and be able to articulate the reasons for the determination.  If the position was partially or fully remote in the past, employers should consider any difficulties presented by the remote nature of the position and the impact of those difficulties before reaching a decision. 

[1] The Rehabilitation Act prohibits federal employers and employers that receive federal funds from discriminating against qualified individuals because of a disability.

[2] PWFA requires employers to provide reasonable accommodations to the known limitations related to the pregnancy, childbirth, or related medical conditions of a qualified employee.

[3] Donahue v. Conrail, 224 F. 3d 226, 229 (3d Cir. 2000).

[4] Skerski v. Time Warner Cable Co., 257 F.3d 273 (3d Cir. 2001)

The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.