Remote Work Disability Accommodations in the Post-pandemic Workplace : The Need for Evidence-Driven Analysis

The wave of remote work that has swept the nation since the Covid-19 pandemic has upended traditional notions about how and where work is performed. Advocates for disabled workers have lobbied for remote work for decades because the standard American workplace is designed around the non-disabled worker. The ability to work remotely is crucial to workers with disabilities; it often determines whether they can maintain a job. And yet, most employers have refused to embrace remote work as a disability accommodation. This knee-jerk resistance to remote work has often been based on assumptions, past practice, and a lack of imagination rather than a careful, evidence-based examination of what is feasible and reasonable in a particular situation. In litigation, courts often side with employers, basing their holdings on a set of evidentiary practices that inevitably elevate employers’ concerns over those of employees. This Article makes two unique contributions to the literature on remote work accommodations. First, it identifies and categorizes these sometimes subtle, but usually dispositive, evidentiary practices and analyzes how each one is legally unsound. What the pandemic has taught us about remote work further erodes the bases for these practices, rendering them indefensible. Courts should abandon these evidentiary shenanigans. Second, this Article studies federal remote work accommodations decisions issued since April 2020. Results are mixed, but there are hopeful signs that some courts are changing practices in light of the mountain of data our pandemic-induced nationwide remote work experiment has generated. This would be a welcome development for disability plaintiffs that would help ensure they have a fair chance in court