Illustration by James Yang for The Chronicle
By Arlene S. Kanter
Until an effective vaccine is widely available, it is impossible for any college to be completely safe from Covid-19. Yet many institutions are planning to resume residential life in August. Much has been written about protecting students, but we also need to ask: If faculty members decide that it is too risky to return to campus, do they have the right to work from home?
I come to this question as a law professor from the field of disability-rights law. The Disability Rights Movement’s slogan, “Nothing About Us Without Us” reminds us that decisions should be made by the people most directly affected by them. But even if faculty members are involved in decision making, what do “we” want? Some will want to work from home; others will prefer to return to campus. What is less clear is whether faculty members who are concerned about the risks of returning to campus have the right to teach remotely from home. Several Covid-related regulations and federal and state laws can help guide us.
The Occupational Safety and Health Act requires all workplaces to be “free from recognized hazards that are causing or likely to cause death or serious harm to employees.” The Centers for Disease Control and Prevention has determined that Covid-19 is such a hazard. Accordingly, OSHA recommends that during this crisis, employers should consider, among other things, the use of “remote communication strategies.” Even if a college is unable to remove all dangers, employees cannot refuse to work unless the employer refuses to eliminate or correct the dangers. Because most colleges are working to reduce Covid-19 risks, it would be difficult (although not impossible) for a finding of an OSHA violation to justify an employee’s refusal to return to campus.
For those with disabilities, additional legal protections exist. The Americans with Disabilities Act Amendments Act would allow faculty members who have a physical or mental impairment that “substantially limits a major life activity” to work from home if they can show they are able to perform the essential functions of their job at home and if they have requested and received approval to work from home as a reasonable accommodation for their disability. Even a person with only a record of disability (e.g., history of cancer) or no disability at all but whom others regard as disabled is protected.
For faculty and staff members who qualified as disabled prior to the pandemic, they may request working from home as an additional accommodation. For those who have not previously requested accommodations, they first must prove they are eligible. The Equal Employment Opportunity Commission has suggested that if employees have conditions that make them more susceptible to Covid-19, employers should take steps to eliminate the direct threat posed by Covid-19.
Faculty members who seek accommodations under the ADA must show that that they will be able to perform the essential functions of their job at home. When most colleges thrust faculty members into online teaching in March and continued to pay them, the colleges essentially agreed that faculty members are able to perform the essential functions of their jobs from home, at least during this pandemic. Colleges would be hard pressed to now argue that working from home is not a reasonable accommodation. Moreover, they have resisted tuition refunds for students this spring on the grounds that online education is not inferior to in-person classes.
Although some courts have upheld the right to work from home as a reasonable accommodation under the ADA, most have not. Courts typically defer to an employer’s judgment about where a job should be performed. Further, an employer is not required to provide an accommodation unless or until the employee requests it. Once that request is made, however, the ADA requires an “interactive process” between the faculty member and the employer. A range of accommodations may then be provided, most at little or no cost to the employer. The option of working from home could be considered a reasonable accommodation on a temporary or permanent basis.
Colleges may refuse to provide accommodations that pose an undue hardship, defined as one that involves “significant difficulty or expense.” Allowing faculty members to work from home may involve logistical challenges. It also could make it harder for students to develop personal relationships with other students; not all positive aspects of classroom teaching can be replicated online.
But working from home, by itself, involves little or no financial cost when considered against the college’s overall budget and resources. Even if a faculty member would need to borrow a computer or purchase other equipment in order to work remotely, it would not involve a significant expense. Colleges may claim that if a substantial number of faculty members choose to work from home, it would cause an undue hardship. However, the ADA requires an “individual inquiry” into each employee’s unique circumstances, and a determination of the reasonableness of the request for that specific individual, not in relation to the entire work force.
Faculty members who do not qualify as disabled may still be entitled or even required to work from home. Under the ADA, a person is protected if they are “associated” with a person with a disability. Further, if they or a member of their household falls into one of the categories identified by the CDC as high risk for serious complications from Covid-19, they may be considered a direct threat under the ADA, and local public-health authorities would advise them to stay at home.
Faculty members with pre-existing medical conditions, including age-related conditions, also may be eligible to work from home. Since exposure to the virus may result in an ADA-required ”substantial limitation” in major life activities such as breathing, faculty who have a compromised immune system, chronic health condition, or other medical condition, should inquire whether they may be permitted to work from home as a reasonable accommodation in accordance with the EEOC guidance.
If a college refuses a faculty member’s request to work from home, the faculty member has the option of taking a leave under the Family and Medical Leave Act. This law provides up to 12 weeks of unpaid leave. In addition, Congress recently passed the U.S. Family First Coronavirus Response Act. This law supplements the FMLA by providing eligible employees up to two weeks of paid sick leave or 10 additional weeks of family and medical leave for reasons related to Covid-19. The law, however, applies only to employers with fewer than 500 employees, so many larger universities will be exempt.
Even if colleges are not compelled by legal reasons to allow faculty members to work from home this fall, they should allow it because it is the right thing to do. My own dean recently announced his support for allowing faculty members to choose to teach from home, without requiring any supporting documentation. This is the approach that all institutions should take. The pandemic has given us the chance to rethink how we can make our colleges more accessible and inclusive. By supporting flexible teaching arrangements and giving faculty members the option of working from home, colleges will be showing their commitment to a diverse and healthy college community.
Arlene S. Kanter is a professor of law and director of the disability law and policy program at Syracuse University.
Clarification (6/16/2020, 11:16 a.m.): This essay has been changed to make clear that a history of cancer is an example of a record of disability, not the only form of disability.