Telework for Caregivers: A Gap in Employment and Disability Law

There is currently no entitlement to telework in order to avoid exposing a vulnerable loved one to the virus, let alone to care for a loved one. An employee trying to work remotely might look to the Americans with Disabilities Act (ADA). The ADA requires that covered employers provide reasonable accommodations to qualified employees with disabilities unless doing so would impose an undue hardship on the business. It also prohibits discrimination against employees because of their association with an individual with a disability. However, these provisions, separately and together, do nothing to help an employee looking to limit the exposure of a loved one with a disability. The Equal Employment Opportunity Commission (EEOC) has reaffirmed that no such entitlement exists:

“Although the ADA prohibits discrimination based on association with an individual with a disability, that protection is limited to disparate treatment or harassment. The ADA does not require that an employer accommodate an employee without a disability based on the disability-related needs of a family member or other person with whom she is associated.”

For example, an employee without a disability is not entitled under the ADA to telework as an accommodation in order to protect a family member with a disability from potential COVID-19 exposure.

Even if telework is a reasonable accommodation under the ADA, the employee is not entitled to any accommodations unless they are for the employee’s personal disability.

The employee would next look to the Family and Medical Leave Act (FMLA). After all, this is a family matter. But the FMLA only entitles eligible employees to twelve weeks of unpaid leave to care for a spouse, child, or parent with a serious health condition. Although the employee may take intermittent leave or ask for a reduced schedule, there is no provision of the FMLA that addresses a caregiver who wants to work remotely while caring for a loved one, or just to limit the loved one’s exposure to disease. Moreover, FMLA leave is unavailable for employees whose family members do not have a serious health condition, but who still might be especially susceptible to COVID-19, such as the elderly. Under the law, the employee is only guaranteed limited unpaid leave and only to care for a loved one with a serious health condition.

The employee might think that pandemic legislation had solved the problem, but the Families First Coronavirus Response Act (FFCRA) does not come close to filling the gap. It provides only two weeks of paid sick leave for employees who are unable to work or telework because they must quarantine, two weeks of paid sick leave at two-thirds the regular rate of pay for employees who are unable to work or telework because they must care for another individual subject to quarantine, and an additional ten weeks of paid leave at two-thirds the regular rate of pay for employees who are unable to work or telework because they must care for a child whose school or child care provider is closed for reasons related to COVID-19. The FFCRA does not create an obligation for employers to allow their employees to work remotely either to care for loved ones (beyond the initial two weeks at reduced pay) or to avoid exposing their vulnerable loved ones to the virus. The coverage for parents would not even help an employee with an immunocompromised child if the child’s school were not closed.

Of course, nothing is stopping employers from choosing to allow employees to telework. Since at least 2007, the EEOC has considered telecommuting a best practice for employers to help employees with caregiving responsibilities, but notes that these best practices are “for employers that go beyond federal nondiscrimination requirements.” There is no federal mandate to provide paid flexibility for caregivers. Caregivers have few rights under the ADA and can only get limited unpaid leave under the FMLA.

This gap could perhaps be explained by pre-pandemic skepticism that telework was feasible. If telework is not deemed a reasonable accommodation, as had often been the case for employees with disabilities suing under the ADA, then there are few accommodations that could be offered to caregivers other than the leave granted by the FMLA. There are myriad accommodations that employees with disabilities might need, but fewer, other than telework and leave, that could actually accommodate caregivers. Understanding why telework was not considered reasonable under the ADA, and the change in the workplace landscape as a result of the pandemic, helps explain why caregivers were not covered before and why they should be covered now.

The ADA only covers qualified individuals, meaning those who, with reasonable accommodations, can perform the essential functions of their position.  Under EEOC regulations, evidence of whether a job function is essential includes the employer’s judgment as to whether it is essential, written job descriptions, the amount of time spent on the job performing the function, the consequences of not requiring the employee to perform the function, and the work experience of current and past employees. Before the pandemic sent everyone home, as the Littler Report on Telework under the ADA explains, in-person attendance was considered by many employers to be essential to the job, and they convinced courts to agree.

In 1994, the Seventh Circuit held in Vande Zande v. Wisconsin Department of Administration that generally “an employer is not required to accommodate a disability by allowing the disabled worker to work, by himself without supervision, at home.” Judge Posner explained that such an accommodation would be unreasonable because “[m]ost 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.” The court did note that “[t]his will no doubt change as communications technology advances.” Even as technology has advanced, the majority view has remained, as explained by the Tenth Circuit in 2004 in Mason v. Avaya Communications, that in-person attendance is an essential function, and that it is not a reasonable accommodation to request to be relieved from an essential function of the position. Under this majority view, as articulated by the Fourth Circuit in 1994 in Tyndall v. National Education Centers, “[e]xcept in the unusual case where an employee can effectively perform all work-related duties at home, an employee ‘who does not come to work cannot perform any of his job functions, essential or otherwise.’” The Mason court cited only one such “unusual case”: Humphrey v. Memorial Hospitals Association, a 2001 case in which the Ninth Circuit held that there was a triable issue as to the reasonableness of a work-from-home accommodation for a disabled medical transcriptionist, given that the employer allowed some of the other employees to work at home. The Humphrey court found that telework would be a reasonable accommodation if “the essential functions of the position can be performed at home and a work-at-home arrangement would not cause undue hardship for the employer.”

Today, the unusual case is less extraordinary. The National Bureau of Economic Research at MIT estimates that 35.2% of all workers switched from commuting to working from home as a result of the pandemic, and another 15% were already working from home before the pandemic. With about half the workforce working from home over the summer, it became clear that in-person attendance is not an essential function for many jobs, and thus, even post-pandemic, telework would be a reasonable accommodation. And businesses that have already invested in teleworking infrastructure and developed policies and procedures for allowing employees work remotely will struggle to prove that allowing employees to continue to telework imposes an “undue hardship” on the business. For employees with disabilities that require them to work from home, including employees who are immunocompromised and need to avoid exposure to the virus, telework will now be more likely to be granted under the ADA.

The EEOC cast some doubt on this conclusion as recently as September, explaining that, even for employers that permitted teleworking during the pandemic, whether telework is a reasonable accommodation under the ADA will remain a fact-specific determination:

“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.”

That said, the EEOC acknowledged that the temporary telework experience “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.”

Employers will likely argue that, while telework may seem a reasonable accommodation when a whole business is working remotely, it would be less reasonable to require an employer to accommodate one worker abstaining from an in-person office. Perhaps it might be more difficult to conference in one person to a staff meeting, but are in-person staff meetings truly essential? The current situation is evidence that remote supervision and remote teamwork are possible—and that productivity need not suffer. Some companies have even reported an increase in productivity, and 63% of respondents in a survey agreed that productivity has stayed the same or increased since the transition to remote work. Some employers even report benefits to telework, such as reduced attrition, fewer unscheduled absences, and even cost savings. In many cases, a fact-specific inquiry will still find that attendance is not essential and telework is reasonable. Employees with disabilities will likely be able to telework if needed, but this change in the application of ADA law will not help caregivers.

A new law or amendment to existing law is needed to extend the telework accommodation to caregivers, filling the gap between the ADA and the FMLA. In the short-term, employees with loved ones who are at greater risk of severe illness if exposed to COVID-19 should be allowed to telework until it is safe to go back to the office. In the long-term, caregivers should be allowed to telework if they are able to work while taking care of their loved ones.

Finding a solution for caregivers presents thornier questions—unlike those who simply want to work from home to avoid exposure, many caregivers have caregiving responsibilities that take time. The employee avoiding exposure only needs to prove that a capability to do the essential functions of the job from home without imposing an undue hardship on the employer. For caregivers, employers will want assurances that employees are not paid for the time during which they are actively taking care of their loved ones. Some caregivers may have no time to work at all. But others may only occasionally need to help their loved one or may simply need to be home in case there is an emergency. Think of a parent whose child is undergoing chemotherapy—sometimes the parent will need to take FMLA time to attend doctor’s appointments, but many days, the child will be too sick to go to school, but may not need constant, active care, just someone nearby to care when needed and to be on call for any emergency. That parent may want to work from home when possible, and a program could be developed to combine FMLA leave with telework, with attention paid so that the employer is not paying for time spent providing care.

The contours of the solution could take many forms. Advocates may be wary of opening the ADA to amendment, and may prefer changing the FMLA instead. Perhaps the Family and Medical Leave and Flexibility Act? Alternatively, the gap could be filled by completely new legislation, executive order, or even interpretations of state legislation. In 2016, a California Court of Appeal in Castro-Ramirez v. Dependable Highway Express interpreted the state’s Fair Employment and Housing Act (FEHA) to potentially establish “a separate duty to reasonably accommodate employees who associate with a disabled person.” Although the court did not decide that question because it was not at issue on appeal, it noted that FEHA covers more associational disability discrimination than the ADA because FEHA uses language that is structurally different than the ADA to define “disability” itself as including association with persons with disabilities. Other state laws may be interpreted to require accommodations to caregivers, such as New York’s Human Rights Law, which was amended in 2016 to extend non-discrimination protections to individuals based on their caregiver status. If disability discrimination laws require reasonable accommodations, then caregiver discrimination laws may as well. Whether through new law or new interpretations of old ones, a statutory regime should be adopted that entitles caregivers to telework.

Alternatively, lawmakers could consider a more general right to work from home, as has been considered abroad. Germany’s Labor minister has proposed a right to work from home where possible. Finland’s Working Hours Act 2020 allows some employees to flexibly schedule the time and location of up to half their worktime. And the UK’s Employment Rights Act of 1996 requires employers to consider request for flexible work, including work-from-home arrangements, in a “reasonable manner,” and to only refuse the request based upon eight statutory grounds such as the burden of additional costs or the detrimental impact on quality or performance. This broader right to telework could also begin to remedy gender gaps in the workforce. Flexible work arrangements and a change to workplace culture could allow more mothers to stay in the workforce by obviating the antiquated notion that mothers are meant to stay home while fathers are meant to work long hours in the office. Out of the 1.1 million workers who dropped out of the workforce in September, 80% were women. An entitlement to work from home could better allow parents, along with caregivers, to continue working.

Of course, some jobs cannot be performed at home, and solutions designed around telework will do little for many blue-collar and frontline workers. A study this summer by the University of Chicago found that only thirty-seven percent of jobs in the United States can be performed entirely from home, and that these tend to be higher-paying jobs that require more education. The Bureau of Labor Statistics, citing this study, found that telework is more feasible in management, professional, and administrative support jobs and less feasible in service, construction, transportation, and production jobs. Nevertheless, for some portion of caregivers, an entitlement to work remotely would allow them to earn a living while caring for or protecting their loved ones. It should also be noted that the FMLA only covers children, spouses, and parents with serious health conditions—a broader solution would acknowledge non-married partners, and perhaps even roommates. For example, New York’s Human Rights Law includes “a person who resides in the caregiver’s household” in the term “care recipient.” Employees should be able to telework to protect those they live with, and the law should acknowledge a wider range of caregivers. Finally, it should be noted that the ADA, FMLA, and FFCRA do not govern all workplaces—small offices with fewer than 15 or 50 employees are not covered entities under the ADA and FMLA, respectively, and large workplaces with more than 500 employees are exempt from the FFCRA. The Acts also do not cover federal employees. A solution amending one of these statutes would not cover all workplaces. Filling the gap in employment law will not help all workers, but this is an opportunity to craft legislation that will have a lasting impact on caregivers even after the pandemic is over.

The coronavirus pandemic has exposed gaps in the legal code that have long affected marginalized individuals. Employees with vulnerable loved ones now need accommodations, but caregivers have long needed accommodations and not been guaranteed any under the law. The widespread acceptance of telework during the pandemic has demonstrated that working remotely may be a reasonable accommodation that should be extended to both employees with vulnerable loved ones and employees with caregiving responsibilities. Lawmakers should not let this opportunity to close the caregiving gap go to waste.

Daniel Polonsky graduated from Harvard Law School in May 2021.

This post was originally published on the COVID-19 and the Law blog