By Charles R. Shafer
Covid-19, the first pandemic in 100 years, is not only changing the lives of Americans right now, but may also change the legal landscape of disability discrimination under the Americans with Disabilities Act (ADA) and the Minnesota Human Rights Act (MHRA) for years to come.
Generally, the ADA and MHRA prohibit employers from discriminating against employees because of a disability.1 A cornerstone of disability discrimination revolves around the concept of “reasonable accommodation”—and whether an employee can perform the “essential function[s]” of their job with or without such accommodation.2
Whether an employee is disabled and/or discrimination3 has occurred depends on what constitutes a “reasonable accommodation.”4 The MHRA defines a reasonable accommodation as “steps which must be taken to accommodate the known physical or mental limitations of a qualified disabled person.”5 A 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 modification of examinations, training materials, or policies; the provision of qualified readers or interpreters; and other similar accommodations for individuals with disabilities.6
Although circuits are divided on the issue, the majority has held that an employee’s physical presence at work is an essential function of most jobs.7 Accordingly, if physical presence in the workplace is deemed an essential function, then employers are free to deny disabled employees’ requests to work remotely.
Covid-19 may already be changing employers’ physical attendance requirements. The pandemic has required companies to quickly enact drastic workplace policies to ensure the safety of their employees. Companies like Google, Microsoft, Twitter, Hitachi, Apple, Amazon, Chevron, Salesforce, Twitter, and Spotify have all changed their policies in light of covid-19 to allow employees to work from home.8
Although other national corporations opposed work-from-home policies amid the pandemic, some have since reconsidered.9 Specifically, Charter and MicroStrategy originally disallowed employees to work from home in the days following the outbreak by claiming that their employees’ work could not be completed remotely.10 Charter and MicroStrategy have already reversed their stances—and so could other employers.11 If employers allow their workforces to telecommute now, it can become the norm in the future. Now that employers are taking steps to create remote working environments, physical attendance may no longer be deemed an essential function after the pandemic ends. If employers install infrastructure to accommodate employees’ requests to work remotely now, any arguments that telecommuting is not feasible will be severely undercut in future litigation.
Even before covid-19, telecommuting technology has existed to allow employees to work from home. For example, software like Microsoft Teams and Zoom Video are two of many examples that allow employees to remain productive while working from home. In fact, so many companies have relied on Zoom during the pandemic that its shares, as of early March, had “soared over 85% in 2002 and are up 45% in the last month.”12
Covid-19 has illuminated many weaknesses in America’s infrastructure; however, surprisingly, it has demonstrated employers’ ability to use technology to quickly adapt to accommodate the health and safety of its employees.
The end of the pandemic remains uncertain, but one thing is clear—employers that have previously deemed physical attendance an essential function are now allowing their workforces to telecommute. Perhaps it is time for courts construing the ADA and the MHRA to follow suit.
CHARLES R. SHAFER is a Wisconsin native that practices general civil litigation, with a focus in employment law, at Collins, Buckley, Sauntry & Haugh, P.L.L.P.
NOTES
1 Minn. Stat. §363A.08, subd. 2; 42 U.S.C. § 12112(a); Weber v. Strippit, Inc., 186 F.3d 907, 912 (8th Cir. 1999); Snow v. Ridgeview Med. Ctr., 128 F.3d 1201, 1205 (8th Cir. 1997); Hoover v. Norwest Private Mortg. Banking, 632 N.W.2d 534, 542 (Minn. 2001).
2 See 29 C.F.R. §1630.2 (defining “essential functions” as “the fundamental job duties of the employment position the individual with a disability holds or desires. The term “essential functions” does not include the marginal functions of the position.” A function may be considered essential if such functions are: (1) the reason the position exists is to perform the function; (2) a limited number of employees can perform the function; and (3) the function is highly specialized and the individual is hired for his or her ability to perform the function. 29 C.F.R. §1630.2(n)(2). See also McBee v. Team Indus., Inc., 925 N.W.2d 222, 230 (Minn. 2019) (for purposes of the MHRA, “essential functions” are those functions “required of all applicants for the job in question” and is defined by referring to the ADA) (citing Minn. Stat. § 363A.03, subd. 36(1)).
3 See 42 U.S.C. §§12112(5)(5) (defining “discrimination” to include an employer’s failure to provide a “reasonable accommodation” to an employee with a disability) and 12111(9) (defining what constitutes a “reasonable accommodation”); 29 C.F.R. §1630.2(o)(1) (explaining the EEOC’s definition of “reasonable accommodation”); see also Minn. Stat. §363A.03, subd. 36.
4 Under the ADA, employers are required to engage in an “interactive process” to determine an appropriate reasonable accommodation for the employee. 29 C.F.R. § 1630.2(o)(3) (2019); Faulkner v. Douglas County, 906 F.3d 728, 733 (8th Cir. 2018). However, such a requirement is not required under applicable Minnesota Law. McBee v. Team Indus., Inc., 925 N.W.2d 222, 229 (Minn. 2019) (holding that the MHRA “does not mandate that employers engage employees in an interactive process to determine whether reasonable accommodations can be made”) (citations omitted).
5 Minn. Stat. §363A.08, subd. 6(a); McBee v. Team Indus., Inc., 925 N.W.2d 222, 230 (Minn. 2019).
6 42 U.S.C. §12111(9); see also 29 C.F.R. §1630.2(o)(1) (the EEOC’s interpretation of what further constitutes a reasonable accommodation); Minn. Stat. §363A.08, subd. 6(a).
7 See Vande Zande v. State of Wis. Dept. of Admin., 44 F.3d 538, 8 A.D.D. 159, 3 A.D. Cas. (BNA) 1636, 133 A.L.R. Fed. 713 (7th Cir. 1995) (“Generally… an employer is not required to accommodate a disability by allowing the disabled worker to work, by himself, without supervision, at home”); see also Rask v. Fresenius Med. Care N. Am., 509 F.3d 466, 469-70 (8th Cir. 2007) (the 8th circuit has “consistently held that regular and reliable attendance is a necessary element of most jobs”) (citations omitted); see also Heaser v. Toro Co., 247 F.3d 826, 832 (8th Cir. 2001), abrogated by Torgerson v. City of Rochester, 643 F.3d 1031 (8th Cir. 2011) (holding that allowing an employee to work from home via remote-access computer software was not a reasonable accommodation because purchasing and installing such software was not feasible).
8 Bryan Lufkin, “Companies Around the Globe Have Rolled out Mandatory Remote Work. Whether You’re a Newbie or WFH Veteran, Here’s What You Need to do to Stay Productive,” BBC Worklife (3/12/2020), https://www.bbc.com/worklife/article/20200312-coronavirus-covid-19-update-work-from-home-in-a-pandemic. (Global companies have “rolled out mandatory work-from-home policies amid the spread of Covid-19”).
9 Mike Snider, Charter, MicroStrategy Reverse Policies, Allow Work at Home During Coronavirus Outbreak, USA Today (3/19/2020), https://www.usatoday.com/story/money/business/2020/03/19/coronavirus-work-home-policies-reversed-charter-microstrategy/2877839001/.
10 Id.
11 Id.
12 Benjamin Rains, “Buy Soaring Zoom Video (ZM) Stock to Fight Coronavirus Market Fears?”, Nasdaq.com (3/5/2020), https://www.nasdaq.com/articles/buy-soaring-zoom-video-zm-stock-to-fight-coronavirus-market-fears-2020-03-06.