ADA Prohibits Retaliation Against Workers Who Telecommute as a Reasonable Accommodation

​Workers who are at higher risk for severe illness from COVID-19 because of an underlying impairment may be entitled to telecommute as an accommodation under the Americans with Disabilities Act (ADA). But they may also be scared of being retaliated against for telecommuting.

Make sure managers know that the ADA prohibits retaliation, particularly given how common retaliation claims have become and how difficult they are for employers to defend against.

"Such claims are on the rise," said Kristen Gallagher, an attorney with McDonald Carano in Las Vegas. According to the Equal Employment Opportunity Commission, the number of charges alleging retaliation has more than doubled in the last 20 years. In 1997, across all equal employment opportunity (EEO) statutes, claimants alleged retaliation in 22.6 percent of filed charges. That percentage has increased almost every subsequent year, Gallagher noted. In 2019, the percentage climbed to 53.8 percent.

Protected Activity

EEO laws, such as the ADA, that prohibit retaliation provide that an employee cannot be retaliated against for having engaged in protected activity. Requesting a reasonable accommodation under the ADA can be a protected activity, said Philip Voluck, an attorney with Kaufman Dolowich & Voluck in Blue Bell, Pa. He emphasized that a general fear of contracting COVID-19 is not protected activity.

Gallagher said that workers with disabilities "may be scared they will be retaliated against for telecommuting, which would be retaliation based upon requesting or obtaining a reasonable accommodation. It could also be considered a failure to accommodate if the accommodation comes with adverse employment consequences."

When Is Telework a Reasonable Accommodation?

Telework can be a reasonable accommodation if someone has a disability and a medical need to work at home because of the disability, and the essential job functions can be done at home, said David Fram, director of ADA services at the National Employment Law Institute in Golden, Colo.

Many people have an underlying condition resulting in a medical need to avoid the workplace because of COVID-19, he said. These employees may need to telework only until a vaccine becomes available, he added. The accommodation doesn't have to be permanent.

"The big question will be whether the job can be done at home," he said. If it can't, employers might consider going beyond what the ADA requires and reassigning the worker, or allowing him or her to temporarily forgo essential job functions while working from home. But the employer should tell the employee in writing that it is making an exception from its usual policy, Fram cautioned.

If employees telework, the employer may need to provide reasonable accommodations, such as a sit/stand desk at home, in addition to allowing remote work, he added.

Types of Retaliation

Retaliation claims are common under the ADA, said Kristy Avino, an attorney with McCarter & English in Boston.

In addition to prohibiting retaliation, the ADA forbids employers from interfering with an individual's rights under the ADA, she said. "The broader prohibition against interference protects individuals from coercion, intimidation, threats or interference in the exercise or enjoyment of their rights under the ADA," Avino said.

To be prohibited retaliation, an adverse action must be at least partly because of the protected activity, said Leni Plimpton, an attorney with Fortis Law Partners in Denver.

An adverse employment action might include, in addition to refusal to accommodate:

• Failure to promote.
• Termination.
• Discipline.
• Negative performance evaluation.
• Demotion.
• Pay cut.
• Change in hours, such as a reduction or an increase, or adjustments to hours worked (for example, a transfer to the night shift).
• Change in duties.
• Suspension.
• Forced leave or furlough.
• Transfer.

Threatening arrest and other nonemployment actions could qualify as adverse actions as well, Plimpton noted.

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What Plaintiffs Need to Show in Retaliation Claims

"Retaliation claims can be easier to prove than claims of discrimination," said Laura Jacobsen, an attorney with McDonald Carano in Reno, Nev.

"This is because, to prevail on a retaliation claim, an employee does not need to prove that the conduct opposed actually was discriminatory or illegal," she said. "Instead, an employee must demonstrate that at the time [he or she] engaged in protected activity, the employee had a reasonable, good-faith belief that the underlying conduct violated the law."

She noted that employees establish a causal connection between their protected activity and a subsequent adverse employment action through either:

• Direct or indirect evidence of an employer's retaliatory motive.
• Circumstantial evidence (i.e., evidence that creates an inference that the employer's actions were retaliatory).

It is not common for an employee to have direct evidence of retaliation, Jacobsen said. Most cases are based on circumstantial evidence.

Plimpton noted that under the circumstantial evidence framework, the plaintiff must show:

• He or she engaged in a protected activity.
• The employer was aware of the activity.
• The employer took adverse action.
• A causal connection exists between the alleged adverse action and the protected activity.

If the plaintiff makes this showing, the burden shifts to the employer to articulate a legitimate, nonretaliatory reason for the decision. The plaintiff then attempts to show this reason was pretextual or false.

"One of the issues that often becomes a focal point in retaliation cases is the duration between the protected activity and the adverse employment action," Jacobsen said. "In terms of causation, a short time frame between an employee's protected activity and the employer's adverse employment action may support a retaliation claim."

When alleged retaliation follows a discrimination claim, and if the period between the claim and the adverse employment action is less than two or three months, as is often the case, retaliation can be easy to prove, said Nicholas Reiter, an attorney and co-chair of the labor and employment group with Venable in New York City. When the period is longer, it typically is more difficult for the plaintiff to prove his or her retaliation claim.