Cardozo Law Review
Abstract
The COVID-19 pandemic fundamentally altered how society conceptualizes the spatial boundaries of the workplace, proving that businesses can operate effectively without requiring employees’ physical presence. As remote work gained legitimacy during the pandemic, longstanding assumptions about where jobs can be performed—and where legal protections apply—have come into question. In particular, the scope of the Americans with Disabilities Act (ADA) has become increasingly hazy, especially regarding when the ADA is triggered outside of the physical workplace.
Currently, there is a circuit split as to whether employees with disabilities are entitled to ADA protections for their commute to work. This Note addresses the circuit split and further examines several forms of work outside of the physical workplace, including telework. This Note argues that the most recent opinion in the circuit split, EEOC v. Charter Communications, LLC, was incorrect in declining to define “whether and when physical presence is an essential job function.” Rather than evaluating physical presence as an essential function itself, this Note proposes evaluating whether physical presence is required for each essential function of one’s job, given the totality of the circumstances of the needs of a particular employee and employer. In the wake of a pandemic that forever redefined the workplace, this Note argues that judicial intervention is critical where legislative guidance has been absent.
Disciplines
Civil Rights and Discrimination | Disability Law | Labor and Employment Law
Recommended Citation
Shelby Wray,
Necessity or Preference? Navigating the Role of Physical Presence in the Post-Pandemic Workplace,
47
Cardozo L. Rev.
1129
(2026).
Available at:
https://larc.cardozo.yu.edu/clr/vol47/iss3/7
Included in
Civil Rights and Discrimination Commons, Disability Law Commons, Labor and Employment Law Commons