More than a year and a half into the COVID-19 crisis, the slow creep "back to normal" is proving more like the dawn of a new workplace era. While the outlines are still forming, we can see clearly that remote work and flexibility will be hallmarks of the new workplace age. These changes, of course, bring challenges for employers. While some issues are brand new, most are common problems simply manifesting in new ways.

Accommodations and Schedules

Remote work is more popular than ever, with employers and employees both embracing the change in at least some respects. Even employers who return to fully in-person schedules will likely find at least some unavoidable increase in remote work. The U.S. Equal Employment Opportunity Commission has long considered remote work a reasonable accommodation for employees with disabilities under the Americans with Disabilities Act (ADA). Advances in technology over the years have chipped away at employers' arguments that remote work constitutes an undue hardship, and the pandemic added dramatic evidence that lots of work can, in fact, be done remotely. The paradigm shift also increased reliance on support technologies, such as Zoom and Slack, quelling some of the pre-pandemic concerns about decreased collaboration and communication. Employer upgrades to technological infrastructure to support remote work have also largely alleviated data security concerns.

Sometimes remote work is not possible or creates a major disruption to the workplace, though we can expect that to be more of the exception than the rule moving forward. Employers who excused essential job functions to maintain remote operations during the pandemic's peak, and who reinstate those functions along with a return to the office, may have grounds to deny telework requests. If the employer would have to eliminate essential functions for an employee with a disability—even if those functions were temporarily halted during the pandemic—this would likely not be a reasonable accommodation under the ADA. See, e.g., Maffett v. City of Columbia, No. 3:19-832-MGL-KDW, 2021 U.S. Dist. LEXIS 178622, at *55 (D.S.C. April 19, 2021). In Maffett, the court awarded summary judgment to the employer where it had denied plaintiff's request to telework as an accommodation. One of plaintiff's essential job duties involved using specialized equipment on-site, and even though the employer had made due with telework during the pandemic, it sought to resume normal operations. The employer had no obligation to alter plaintiff's job duties, even if it had temporarily suspended some job duties during the pandemic.