Abstract

Our jobs are not only about the work we do—they are also about when and where we do that work. For a variety of reasons, employees with disabilities often seek modifications of their employers’ policies regarding when and where work is performed. These accommodations are often necessary for the employee to remain employed. The Americans with Disabilities Act (“ADA”) requires employers to provide reasonable accommodations to employees with disabilities, and these accommodations can include schedule changes. But research demonstrates that when responding to accommodation requests under the ADA, employers are often reluctant to grant requests to modify the rules regarding when and where work is performed, seeing these rules as unalterable. If an employee sues under the ADA, courts usually side with employers, thereby not requiring the employer to provide the modification sought by the disabled employee. Given that schedule changes are the most frequently requested accommodation under the ADA, the entrenchment of these scheduling rules causes many workers with disabilities to lose their jobs or otherwise suffer harm—in short, they are subordinated through their schedules.

In conceptualizing how to solve this, the pandemic’s experience with remote work is helpful. This experience taught us that for many jobs, where work is performed isn’t that important, and that remote work can be successful. In order to replicate that experience for when work is performed (schedules, hours, shifts) I propose a universal accommodation mandate. If everyone has the right to request accommodations—especially modifications of the rules regarding when and where work is performed—we might see a replication of the COVID-19 remote work experience, but without the disastrous effects of the pandemic. More employees requesting other schedule accommodations should help employers realize that many of their rigid scheduling rules are not necessary, just like COVID-19 taught them that in-person presence is not always necessary. Only then can we end the subordination of disabled workers through their schedules.

Document Type

Article

Publication Date

Winter 2023

Publication Information

55 Arizona State Law Journal 1293-1350 (2023)

Comments

First published by Arizona State Law Journal, Volume 55, Issue 4.

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