Employers are in many ways in uncharted waters at present. Prior to the COVID-19 pandemic, requiring full-time in-office attendance was seen as an “essential function” of many jobs. There was often resistance to accommodations which departed from this norm and employers often took the position that accommodating a disability with remote work was “unreasonable.” Most employers outside of school and healthcare settings also rarely had to think about policies related to employee vaccinations. Now, in light of the heavy focus on remote work during the pandemic, more employees are likely to also request remote work as an accommodation for a disability or simply as a benefit or “perk,” putting a spotlight on the varying approaches to office life. As many employers are either back in the office, in the process of returning to the office, or considering next steps, issues such as culture, generational differences, technological advancements, work-life balance, and what the workplace should look like come to the fore.
There is no one-size-fits-all policy for remote work and whether COVID-19 vaccinations should be mandatory versus offering weekly testing options, especially when dealing with the Americans with Disabilities (ADA) and its state-and-local corollaries. The combination of employee accommodation requests for remote work and to remain unvaccinated for “personal” or non-ADA reasons can create further tension and opens up the potential for discrimination claims. In this presentation, we will discuss shifting approaches to remote work, developing and implementing COVID-19 vaccination policies, and considerations relative to accommodation requests for these issues.
Key topics to be discussed:
ADA Accommodations, Vaccines, and Remote Work, Generally
The Rise of Remote and Hybrid Work Arrangements, Generally
Employee Accommodations under the ADA
Date / Time: February 8, 2022
2:00 pm – 4:10 pm Eastern
1:00 pm – 3:10 pm Central
12:00 pm – 2:10 pm Mountain
11:00 am – 1:10 pm Pacific
Choose a format:
Live Video Broadcast/Re-Broadcast: Watch Program "live" in real-time, must sign-in and watch program on date and time set above. May ask questions during presentation via chat box. Qualifies for "live" CLE credit.
On-Demand Video: Access CLE 24/7 via on-demand library and watch program anytime. Qualifies for self-study CLE credit. On-demand versions are made available 5 business days after the original recording date and are viewable for up to one year.
Kevin J. O’Connor, Esq., | Partner | Peckar & Abramson, P.C.
Kevin O’Connor is a shareholder in the Labor and Employment Group at Peckar & Abramson, P.C. where he also serves as Chair of the firm’s Corporate and Commercial Disputes practice group. Kevin is a seasoned trial lawyer with a focus on employment defense, business and commercial litigation, including complex employment and construction disputes. He represents clients in state and federal trial and appellate courts across the country as well as in alternative dispute resolution forums such as arbitration and mediation. Kevin has extensive experience in the areas of EPLI and D&O defense; class action defense; partnership and corporate dissolutions; construction litigation; unfair competition; restrictive covenant and trade secret litigation; RICO and securities law defense and Computer Fraud & Abuse Act and Computer Related Offenses Act claims.
In 2019, Kevin was elected as a Fellow of the American Bar Foundation which is a global honorary society of attorneys, judges, law faculty and legal scholars whose public and private careers have demonstrated outstanding dedication to the highest principles of the legal profession and to the welfare of their communities. This prestigious distinction is limited to one percent of lawyers licensed to practice in a given jurisdiction. In 2016, Kevin was invited to join the Claims and Litigation Management Alliance (“CLM”) in which he remains an active participant. Kevin is also an active member of the Defense Research Institute’s Retail & Hospitality, Employment Law, and Construction Law Committees, as well as the Association of Defense Trial Attorneys. He is a frequent lecturer on employment and construction law issues and has published numerous articles in those areas. Kevin received his Juris Doctor from Rutgers University School of Law, where he served as Editor-in-Chief of the Rutgers Law Review.
Stephen E. Irving, Esq., | Senior Counsel | Peckar & Abramson, P.C.
Stephen E. Irving is Senior Counsel in the Houston office of Peckar & Abramson, P.C. He focuses his practice on labor and employment law, an area in which he has been practicing since 1995 and board certified by the Texas Board of Legal Specialization since 2007. Stephen’s experience includes the successful defense of collective action wage and hour claims, employment discrimination, sexual/racial harassment, wrongful discharge, and Payday Act claims, as well as enforcement of non-compete agreements. Stephen regularly works with clients facing government investigations including EEOC, OSHA, MSHA, and the Wage Hour Division of the U.S. Department of Labor. Stephen is also experienced in union avoidance, labor/management relations and employment immigration matters such employment-based visas.
Stephen is an experienced advisor across the spectrum of employment law, training HR and management personnel in a variety of employment law topics including the Americans with Disabilities Act; Family and Medical Leave Act; union avoidance, sex, age, national origin, and race discrimination; sexual harassment; racial and other harassment; employee discipline and performance evaluation; HIPAA/private health information; wage and hour law; unconscious bias and other related matters. Stephen’s experience also includes construction law and corporate/transactional law including drafting, editing, and negotiation of commercial construction contracts as well as commercial leases, and mergers and acquisitions.
Lauren Rayner Davis is an associate in Peckar & Abramson’s Labor and Employment Practice. She represents employers on a wide range of labor and employment issues such as labor contract administration, collective bargaining agreement negotiations, unfair labor practices, discrimination, harassment, terminations, layoffs, reasonable accommodations, investigations, application of state and federal family and medical leave acts, interpretation of wage and hour laws, defense of Employment Practices Liability Insurance (EPLI) and Directors & Officers (D&O) claims, and provides day-to-day advice on related legal issues. Lauren practices before New York and New Jersey State Courts as well as Federal and State Agencies, including the National Labor Relations Board (NLRB), the United States Equal Employment Opportunity Commission (EEOC), the New York State Division of Human Rights and the New Jersey State Division on Civil Rights. She is also certified as a New Jersey court-trained mediator.
Prior to joining Peckar & Abramson as an associate, Lauren was a judicial law clerk in the Civil and Appellate Divisions of the New Jersey Superior Court and a judicial intern in the United States District Court for the Southern District of New York. Lauren’s unique experience at both the trial and appellate levels established a solid foundation for her practice. Lauren earned her J.D. from Brooklyn Law School, where she served on the executive editorial board of the Brooklyn Law Review, and her B.A., cum laude, from the University of Southern California.
I. ADA Accommodations, Vaccines, and Remote Work, Generally | 2:00-2:40pm
a. Reasonable Accommodations and the Interactive Process
II. The Rise of Remote and Hybrid Work Arrangements, Generally | 2:40-3:20pm
a. The COVID-19 pandemic brought down many of the barriers preventing remote work.
b. Companies may use their experience during the pandemic to reimagine their workforceand deployment of talent.
i. In-Person, Hybrid, and Remote
ii. Recruitment and talent-retention
iii. Different approaches to remote work and hybrid environments
A. Communication and transparency.
B. Leveraging talent remotely.
C. Embracing digitization.
c. Generational differences, flexibility and work-life balance.
i. Attracting talent through remote work or flexibility
ii. Gender equity
iii. Setting boundaries
d. Statistics from recent surveys on remote work.
III. Break | 3:20-3:30pm
IV. Employee Accommodations under the ADA | 3:30-4:10pm
a. Equal Employment Opportunity Commission Guidance on Remote Work andAccommodations
i. Accommodations at home to mirror in-office accommodations
ii. Remote work during Pandemic does not automatically make remote work a“reasonable accommodation”
A. Employers’ temporary excusal of performance of one or more essentialjob functions when they close the office does not mean that the job’sessential functions have changed.
B. A determination still needs to be made that the employee can fulfill theiressential job functions working remotely.
C. EEOC guidance states that employees may request accommodations forthemselves and not because they need to care for others who arevulnerable to COVID-19.
b. Implementing a COVID-19 Vaccination Policy in the Workplace
i. Equal Employment Opportunity Commission Guidance on Vaccines
ii. The Occupational Safety and Health Administration (OSHA)’s emergencytemporary standard (ETS)
iii. Considerations relative to developing a vaccination policy
iv. Accommodations and the interactive process for mandatory vaccination policies