By Adam Morell, JD, assistant vice president, product compliance
The crystal ball for the remainder of 2022 shows us that trends around work from home, vaccine mandates and litigation are sure to evolve. How can employers prepare?
Work from home: A game changer for employees with a disability
Before the pandemic, it was generally accepted for a court to defer to an employer on whether onsite presence was an essential function of the job. Therefore, they frequently didn’t have to grant remote work as an accommodation. However, after nearly two years of working remotely, questions will arise about why employees with a disability cannot continue to do so.
Moving forward, employers who want to decline requests from employees to work from home will need to individually assess each circumstance and pinpoint why remote work was not effective in the early stages of the pandemic. This could involve problems with technology, decreased productivity, lost sales, etc. Fortunately, as the cases of Frantti v. State of New York (2nd Cir. 2021) and Ryerson v. Jefferson County (11th Cir. 2021) illustrate, if you have a strong interactive dialogue with the employee and you determine that working from home isn’t reasonable, you will be in a much better position declining the request than if you didn’t do the individualized assessment.
Vaccine mandates: Keeping up with evolving regulations
With the shelving of the proposed Occupational Health and Safety Administration (OSHA) temporary standard, state and local vaccine mandates will likely continue to pop up as the OSHA rule makes its way through the courts. Currently, nearly two dozen states have some kind of vaccine or test requirement. On the other side of the coin, nearly a dozen states have adopted new laws intended to curtail workplace vaccine mandates. In fact, a couple of states, including Montana and Tennessee, have sought to ban such mandates entirely. Familiarizing yourself with evolving state and local regulations is essential.
At the employer level, many companies have implemented their own vaccine mandates. Equal Employment Opportunity (EEO) laws allow an employer to require all employees physically entering the workplace to be fully vaccinated against COVID-19, subject to the reasonable accommodation provisions of the Americans with Disabilities Act (ADA), Title VII, and other EEO considerations.
While several high-profile companies have issued strict vaccine mandates, the tight labor market may prevent some companies from doing the same. In fact, two of the country’s biggest manufacturers dropped their proposed vaccination requirements in December 2021 and another food and beverage company reversed course – informing employees that it would not require any vaccine or testing regimen.
Litigation: Expectations for 2022
In 2019, for the first time in the history of the ADA, disability charges were filed more frequently than any other type: race, color, religion, sex, national origin or age. In 2020, that trend continued, and the gap between disability charges and other charges widened. Aided by claims related to COVID-19, we anticipate that when litigation statistics for 2021 are announced, the trend will continue and the gap between disability and everything else will expand.
While it is still early in the year, we expect that working from home, discussions around vaccine mandates and increased disability-related litigation will be front and center for absence management professionals. We’ll continue to provide updates as trends evolve.