The modern American labor force has endured a series of historic events that highlight the resilience of a nation whose citizens routinely work 40 – 60 hours a week under challenging working conditions. Whether it’s the threat of a looming government shutdown or union strikes, the American labor force has continued to adapt and march forward – full steam ahead. According to the U.S. Bureau of Labor Statistics, in June 2022, alone, the United States created 372,000 jobs despite fears of a recession. Notably, however, the jobs being created today present a new working option that has transformed the demographic of the labor market.
The ability to telework, or work from home (WFH), is not a new concept, but its impact on the global economy from the onset of the COVID-19 global pandemic has been undeniable. Surprising to many who predicted the failure of the telework model, businesses that are eligible for telework have continued to flourish despite corporate and managerial fears that employees require the structure and camaraderie that is inherent in an in-office work setting. The telework model has benefited more than merely the employees presented with the option of tending to their many household duties while completing their work-related tasks; for example, 1 – 2% of businesses have also been able to lower their overhead by reducing workplace square footage. And perhaps most significantly, previously siloed minority communities have felt the positive impact of telework as work from home has opened doors to some who might not have otherwise had the opportunity to rise in the ranks.
The Americans with Disabilities Act (ADA) has prohibited discrimination against individuals with disabilities in jobs, schools, and all public and private areas that are open to the public. With regard to employment specifically, the ADA ensures that persons with disabilities have access to the same employment opportunities and benefits available to persons without disabilities. As a means of protecting the interests of disabled persons, the law requires that employers with 15 or more employees provide “reasonable accommodations” to employees with disabilities such that they do not cause “undue hardship” to the employer.
Nevertheless, persons with disabilities were largely underrepresented in the workforce in the time before the COVID-19 pandemic and telework. And unfortunately, if the American people are called back into the office without setting up proper accommodations, persons with disabilities may continue to be underrepresented. Yet and still, the tide can turn if employers are willing to provide suitable insurance for persons with disabilities and continue to reinforce their commitment to diversity by showcasing the essential roles persons with disabilities play in the workforce. In an ever-changing world that is currently moving towards favoring productivity over physical presence, the time to further protect the growing interests of Americans with disabilities has arrived.
Understanding the Numbers
In 2022, the Bureau of Labor Statistics released a report titled Persons with a Disability: Labor Force Characteristics – 2021. The report endeavored to compare and contrast data concerning persons with disabilities to data regarding persons without disabilities in the workforce. According to the study, in 2021, persons with disabilities represented roughly 31,084 of the civilian population surveyed, yet only 5,950 people or 19.1% were employed. Although this number increased by 1.2 % between 2020 and 2021 (up from 17.9%), in 2019, 19.3% of persons with disabilities in the workforce were employed. And of those 5,950 employed persons with disabilities, 29%, or 1,738 people, typically worked part-time. Comparatively, persons without disabilities represented 230,361 of the civilian population surveyed, and of that amount, 146,631 people or 63.7% were employed, and only 16% typically worked part-time. This stark difference appears generally consistent throughout the study, but also correlates more specifically to age, race, and educational attainment.
Persons with disabilities who are over the age of 65 represented 15,498 of the civilian population surveyed compared with 40,692 of those in the same age bracket without disabilities, and were employed at a rate of 7.4% and 23.2% respectively. African Americans with disabilities were employed at a rate of 18.2% of the 4,267 people surveyed, while African Americans without disabilities saw 67.1% of the total 29,347 people surveyed employed. And only 9.5% of persons with disabilities who have less than a high school diploma were employed, while their non-disabled counterparts were employed at a rate of 55.8%.
Moreover, a larger share of persons with disabilities tend to work in service occupations (18.2% compared with 15.9%), sales and office occupations (21.4% compared with 19.7%), and production, transportation and material-moving occupations (14.6% compared with 12.6%) than their counterparts without disabilities. Notwithstanding that, people without disabilities were employed at a rate of 42.7% in management, professional and related occupations, while persons with disabilities were employed at a lesser rate of 36.7%.
The statistics in the BLS study illustrate a structural defect in many employers’ abilities to readily accommodate persons with disabilities when they are required to work full-time in the office. If the COVID-19 pandemic has in any way had a positive effect on the trajectory of our national and global communities, it has brought about a heightened understanding of how flexibility and accessibility can contribute to broader employee accommodation, greater employee morale, and a work-life balance that once felt elusive and unobtainable to many. The benefits of working from home have only continued to expand.
Balancing the Work/Life Scale
The option of working from home throughout the pandemic has been a conduit to answering a recurring conundrum in workplace environments: can businesses and employees succeed and/or thrive in decentralized office locations? The answer, of course, is a resounding YES! But for many Americans with disabilities, the prospect of working from home is accompanied by unique benefits that require an in-depth examination and understanding of the day-to-day obstacles they may face.
For many people with disabilities, greater amounts of time and money are saved by remaining home throughout the workday. This time and money do not have to be accounted for by the employee who builds additional time into their morning routine to get to a physical location “on time,” nor does it need to be ffactored inby employers who offer transportation benefits. Additionally, teleworking maintains the privacy that anyone, including people with disabilities, may require to address medical or other personal issues that a cubicle or public bathroom may leave to chance. In the eyes of many, privacy equals protection, and when people feel protected, they can feel empowered by their employers. This happy medium ensures that people with disabilities can work efficiently without extraneous distractions and without the additional expenses associated with accommodated travel, all of which contributes to their overall well-being. Working from home also has the added benefit of providing access to employers far from the employee’s home.
Telework allows both people with and without disabilities to apply for jobs in cities across the nation. According to a 2022 Coresignal survey on remote work trends during the COVID-19 pandemic, California has the largest share of remote roles in the United States, followed by Texas and New York. And today, the leading videoconferencing application, Zoom, has approximately 300 million daily meeting participants, up 2900% since December 31, 2019, when the COVID-19 pandemic was beginning to take shape. What is being discovered is that effective leadership and collegiality are not unique to in-person workplace environments, and that in-office work is not essential to many job functions, particularly in managerial, professional, and related occupations. Still, however, a light rumble has started to shake the ground upon which this upward momentum has traveled.
Following the mass production of COVID-19 vaccines by Moderna, Pfizer, and Johnson & Johnson, and the apparent decreasing impact of the pandemic on the labor force, states and employers alike have been calling for modified and/or abrupt returns to the workplace—leaving telework in the past. These new policies and mandates threaten the very progress the economy will need as technological advances continue to shape the way we live our daily lives. And the results could be catastrophic for people with disabilities who were beginning to experience the positive shifts telework created firsthand.
The Rogue Wave Headed This Way
On May 5, 2022, Virginia Gov. Glenn Youngkin announced that he would be rolling back Virginia’s COVID-19 telework policy. The new policy officially went into effect on July 5, 2022, and requires government employees seeking to continue working from home for three or more days a week to undergo an extensive approval process. The approval process includes obtaining a signature from Governor Youngkin’s chief of staff. Lesser requests for work from home require approval from an agency head or a cabinet secretary. In just that two-month span between the announcement and implementation of the policy, more than 300 employees from five state agencies tendered their resignation. Such a move only adds to the “Great Resignation,” which saw over 47 million Americans voluntarily quit their jobs in 2021.
In 2021, The Virginia Governmental Employees Association conducted a survey of more than 400 government employees to ascertain the impact Governor Youngkin’s policy would have on Virginia constituents. The survey found that approximately 50% of employees were concerned with rising gas costs (associated with the looming recession); 25% cited childcare as a number one concern as the pandemic sharply reduced childcare expenses; and others cited that the policy jeopardized their work/life balance and overall mental health. These concerns transcend state lines and call into question the true reason employers across the nation are seeking to have their employees return to the office in droves.
Pulling employees back into the office shifts companies from being high- or medium-autonomy environments to low-autonomy environments, wherein they can conduct greater oversight over productivity and workload. By being able to orchestrate the day-to-day work environment of its employees, a company can ostensibly control their bottom line. As it would seem, it isn’t the cost to the mental and physical health of their employees that matters, it is the cost/benefit analysis associated with financial uncertainty. But these same companies must not overlook the detrimental effects returning to the office may have on people with disabilities.
There is a cost associated with every employee, and every employee requires varying degrees of education, insurance and accommodation to perform at optimal levels of productivity. For people with disabilities specifically, accommodation can be as simple as requiring enough space for their wheelchairs to travel throughout the workspace—an accommodation that can prove to benefit everyone in the work environment. For others, however, accommodation can include revamping the entire company website and applications for visually- or hearing-impaired people whose accessibility is based solely on the company’s understanding and appreciation of their individual needs. While one employee with a disability may require accommodations that can be easily met by common devices such as an automatic door or a ramp, another employee’s cost/benefit analysis looks different overall, because their accommodations are tailored specifically to them. Assistive technologies, such as screen reading software, braille displays, or text-to-speech technology are often required for many people with disabilities to complete their tasks. In order to fully recover from the Great Resignation without jeopardizing the progress seen among people with disabilities, states and companies must identify and reinforce the continued benefits teleworking has presented to this economy.
Venturing into the Deep
Improving workplace statistics for people with disabilities cannot occur without: (1) viewing telework as a benefit rather than a burden; (2) instilling employees with greater senses of autonomy; and (3) removing barriers to entry for people with disabilities. Each of these factors operate independently, but they can all be used to improve a company’s bottom line.
Benefit v. Burden
Despite the national release from “stay-at-home” orders and mask mandates, we still remain in the midst of the COVID-19 pandemic. There is a major health benefit to continuing to allow all employees latitude to work from home. From home, employees are able to work free from the anxiety associated with in-office work, they avoid their lengthy commutes, and they are able to save on daily transportation, lunch, or other expenses. Additionally, at home, people with disabilities are able to use products and services they already possess to complete their tasks, which could save employers from carrying the costs associated with that employment, while simultaneously proving the value of more diverse employees. Equity in the workplace looks like flexibility, and the more flexible an employer is, the greater the benefit to the business.
Workplace autonomy can also contribute to how flexible a company may be regarded. Every employee works differently under different working conditions, and it is impossible for every employer to fully accommodate each of its employees requests within any given workplace environment. An autonomous workplace environment leaves the onus on the employee to create unique workspaces that best serve their needs and the needs of their employer. The greatest form of workplace trust is autonomy. Employers must trust that their employees, including those with disabilities, are consistently putting their best foot forward, and trust that their interests are fully aligned with the organization. Heightened autonomy can lead to employee loyalty and a better work product.
Removing Barriers to Entry
Surprisingly enough, thousands of job advertisements still list relocation as a prerequisite, or as seen in Virginia, some state governments are requiring state-level authorization to work from home for two or more days a week. These barriers to entry prevent thousands of otherwise qualified people, including people with disabilities, from applying for jobs on a daily basis. By continuing to frame productivity in the lens of in-office work, employers are also preventing themselves from retaining a more diverse and competitive employ. The loss may not seem great, but the concerns are heard and felt across the many unrepresented and underrepresented minority communities of the nation. Employers must listen to these battle cries and reshape their policies if they intend to thrive in a post-pandemic world. The fewer barriers there are to entry, the more equitable and flexible the labor force can become.
According to the Bureau of Labor Statistics, unemployment rates for people with and without a disability declined in 2021 to 10.1% and 5.1%, respectively, but there is no way to predict the effect returning to the office with restrictive work from home policies can have on those numbers. Unfortunately, this is a sink-or-swim scenario. If we are to protect the interests of people with disabilities, we must continue to ride the wave that sparked an uprise in their participation in the global economy. If not, we may lose our momentum and fall victim to the tides we’ve sought so desperately to overcome.
About the Authors
Geoffrey T. Witherspoon, II is an associate and Tracey J. Coates and Eva N. Juncker are partners and co-leaders of the family law practice in the Washington metropolitan area offices of Cipriani & Werner, P.C.