Comment by Meredith Abato
The widespread adoption of remote work policies during the COVID-19 pandemic showed that technology to support remote work exists—and it works. This is revolutionary for workers with disabilities, who are employed at one-third to one-half the rate of their able-bodied colleagues. The Americans with Disabilities Act (ADA) was established in large part to integrate individuals with disabilities into the American workforce and prohibits an employer from denying an employee’s request for reasonable accommodation if it does not prevent the employee from fulfilling the essential functions of the job. Before the pandemic, courts almost always adhered to employer preferences and presumed in-person presence to be an essential function. In more recent “post-pandemic” years, courts have begun to acknowledge the ways that technology has permanently changed the workplace.
Employer preferences alone are an inadequate criterion to determine whether an employer can lawfully deny a request for accommodation under the ADA, and courts have improperly relied upon employer preferences as a justification for dismissing remote work accommodations claims. While other literature criticizes persistent employer deference, this Comment considers new “post-pandemic” decisions and argues that the Code of Federal Regulations overemphasizes employer preferences, leading to misinterpretation of the statute and of Congress’s intent. Technology has long since revolutionized the potential for many roles to be remote-capable, and the pandemic made this abundantly clear. Part II of this Comment provides an overview of the applicable portions of the ADA, standing EEOC guidance on remote work as a reasonable accommodation under the ADA, and the evolution of remote work and technological advances. Part III reviews pre-pandemic and post-pandemic judicial decisions contemplating the presumption of in-person presence as an essential function of employment. Part IV recommends that: (1) the relevant section of the Code of Federal Regulation be updated in accordance with current Equal Employment Opportunity Commission (EEOC) guidance, (2) the EEOC issue updated post-pandemic guidance, and (3) the United States Supreme Court clarify that in-person presence may not be presumed essential and instead adopt a balancing test weighing employer and employee interests in evaluating these claims. Part V concludes.
About the Author
Meredith Abato. J.D. 2025, Tulane University Law School; B.A. 2020, Cornell University.
Citation
99 Tul. L. Rev. Online 1 (2025)