by Clare Cathelain
(Claire Cathelain is currently enrolled as PhD student at University of Lille, she is on her 1st year. She got her law bachelor’s degree in 2018 and her master’s degree in social law in 2020 in Lille. She is specialized in health at work law and in the field of disabilities at work. She is directly concerned by this last subject.)
[This blog is part of a series on the pandemic. The introduction to the series can be found here.]
The Covid-19 pandemic has changed the face of the world. During the health crisis, remote working increased for many reasons and remote work, whether voluntary or not, has been tested on a large scale. In several countries, teleworking has soared as a business continuity plan thanks to the digital revolution in recent years.
While the Pandemic’s impact on people with disabilities was severe, the move to home offices, flexible remote working and remote work also provides the chance for wider labour market participation and increasing employment opportunities for some disabled workers, even if limited in scope by the kinds of jobs that could be done at home. As such, the life-size “remote working test” brought about by the Pandemic can be viewed as a chance to promote some working conditions that could help disabled workers to benefit from better access to employment and opportunity.
This blog post will explore the challenges that remote work poses but also the opportunities they provide for disabled workers.
The Covid-19 crisis as an opportunity to test teleworking at a large scale
Remote working has been tested at a very large scale during the health crisis. Forced on employers to protect the health and the safety of the working population and prevent the spread of the virus, it enabled employees to work from home, social distance, and continue their economic activities. Before the pandemic, organizations “adopted work-from-home practices purely as a matter of convenience and to provide conducive working conditions” and only in some sectors. Telework is also a way to reconcile work and family life and to promote the “work-life balance”, a concept which has become more and more important since the 1980s and which is now the object of a European directive. Article 3 in conjunction with Article 9 of the directive promotes a right to flexible work, including remote working arrangements, flexible working schedules, or reduced working hours. Accordingly, remote working can be viewed as a practice that allows the reconciliation of care responsibilities and work and as an accommodation measure to support workers with care responsibilities. As such, it predominantly enables women to reconcile care and work responsibilities and keep them in full-time employment.
The pandemic has fundamentally changed the atypical nature of remote work arrangements and firmly placed it within the mainstream. As such, the benefits of remote working are more likely to be accessible to all.
Flexibility seems to be a major benefit of remote working. It could be in terms of working place but also in terms of time of work, but it mainly depends on the required work activities. Flexibility also brings job autonomy and this autonomy is very important because it increases productivity by reducing social interaction with the co-workers. Autonomy also lets people organize their own schedules and their work. Workers are not waiting for manager’s instructions, they have agency in their job and more focused on their tasks, not on social interactions. In addition, employees may improve their productivity by staying in the comfort of their home while reducing “the stress related to home-work transport”. Reducing commuting times obviously also has an ecological impact. It may also help to avoid brain-drain in rural areas and it “allows employers access to a larger group of potential workers and, in turn, allows workers access to more job options”.
All of this seems to be specifically beneficial to workers with certain disabilities. Working “exclusively or partly from home is a reasonable adjustment that can increase the accessibility of employment for disabled workers”. Before the pandemic, studies showed that home working could be helpful for disabled workers to “maintain workflow by allowing them greater control over their work schedule and enabling tasks to be arranged around fluctuating energy levels, pain, or medical appointments”. Also, it could circumvent “the daily commute and difficulties associated with reduced mobility and negotiating public transport”. And it was seen as a “guarantee of independence for disabled persons” because they don’t need help for transportation anymore or any other arrangement to come at work.
As “the employment and economic level, challenges and opportunities for people with disabilities and inclusive development have arisen from pandemic” mostly because the (“pandemic-related upswing in working from home may have long-term benefits for (…) workers with disabilities”. This crisis could finally be a chance for disabled workers to get access to jobs and/or to maintain themselves in a job through telework arrangement. Remote work could be more beneficial for them, firstly because, flexibility is a “particular value for people who have physical or mental impairments”. Flexibility pulls apart some barriers for disabled workers to access to work. Besides, working from home has another important upside for disabled workers in that it “circumvents the (…) difficulties associated with reduced mobility and negotiating public transport” and this “may be especially important for disabled people”.
Remote working arrangements can also enable workers with disabilities to access work opportunities that are further away without the need to move and change current supportive care arrangements that are in place. For example, some workers may want to live close to their families, to access the required physical or emotional support. Remote work arrangements enable them to do that, without reducing the work opportunities available to them.
But if some barriers fell, thanks to telework, some of its drawbacks can also constitute hurdles for workers with disabilities. Teleworking has its dark sides. For example, to be able to work independently, an individual must be endowed with self-discipline. Employee needs to avoid procrastination to be able to work from home peacefully; they must stay focused to deal with work-home interferences which were the main disadvantages during the pandemic. Over the lockdown, remote workers had to deal with their families and it is not a surprise to notice that “the presence of children considerably increases the stress of telework” and workers’ productivity. This is especially true for the working mothers because they are likely to be the primary caregiver. Another major drawback of remote working is its potential impact on mental health because of “social and professional isolation”.
Telework might have a bad influence on the specific social isolation of disabled workers and this must be heeded by employers. Moreover, there is a risk that employers’ obligations towards their employees in terms of workplace accessibility, workplace equipment and facilitation are de facto moved to the remote workers, as they have to accommodate work at home.
The legal framework of remote work as an arrangement for disabled workers
The French legal framework enables reasonable accommodations as teleworking, as required by EU law in the Directive 2000/78/EU establishing a general framework for equal treatment in employment and occupation. The first national French trade union agreement (Accord national interprofessionel – ANI) was adopted on July 19th, 2005, focused on things such as the voluntary nature of teleworking; employment conditions (teleworkers must benefit from the same advantages as the other workers); data-protection; privacy, health and safety; training and collective rights. Furthermore, this agreement provided specifics policies for the disabled workers. By example, if an employer refused to allow disabled worker access to telework, he must motivate his decision. This disposition is still on the French Labour Code. Access to remote working definitely can be subsumed under the French legal definition of a necessary and appropriate adjustment which do not imposing a disproportionate or undue burden to an employer that ensure an equal treatment by persons with disabilities according to the article 5 of the 2000/78/EU directive.
After the pandemic a new national trade union agreement was adopted in France on November 26th, 2020. The 2020 agreement encourages employers to negotiate collectively with the trade unions local agreements, company by company, and agree on the practices of remote working. These trade union agreements must foresee arrangements about specific issues, such as working time, health at work and remuneration.
As explored above, workers with disabilities are likely to benefit from remote working because it could allow them to side-step some accessibility issues. However, even if some barriers are indeed removed by remote work arrangements, some others are sadly still complicating the access to the labour market for disabled workers, such as accessibility or discrimination.
Indeed, remote work arrangements does not abolish ableism. The concept is “understood as the application of stereotypes, prejudicial attitudes, and discriminatory behavior for the purpose of oppressing people with disabilities” and significantly impairs opportunities for disabled workers. One of the most common barriers met by people with disabilities are “denied reasonable accommodations for telework” despite a clear duty to do so. Indeed, the CJEU recently has held that the duty to provide reasonable accommodation under Article 5 of the Framework Directive 2000/78/EC article requires “that a worker [that] has been declared incapable of performing the essential functions of the post that he or she occupies [is] assigned to another position for which he or she has the necessary competence, capability and availability, unless that measure imposes a disproportionate burden on the employer”. The duty of reasonable accommodation is thus far reaching and strict. The lack of recognition of this duty demonstrate the continues challenges faced by laws aimed at preventing disability discrimination and the pandemic sheds a new light on it.
The Covid-19 crisis and its wide use of telework has removed some barriers, especially for disabled workers but unfortunately, it does not make ableism disappear. This can be demonstrated by the common refusal of employers to provide reasonable accommodation to disabled working without good reason. Such denial fairly falls within the scope of discriminatory practices that disabled workers are protected from. Various studies about remote work but also practice showed that there were many upsides to using it and that it really could help disabled workers to access or maintain their employment. The law has tried to help workers by regulating telework and the disabled workers by suggesting or enforcing some specific policies.
Unfortunately, all these measures are not sufficient, and some barriers will need time and evolution to be removed. However, the Covid-19 crisis has widely opened several perspectives and shone a light on ableism and its consequences. Nonetheless, this crisis also showed that people can adapt to new norms quickly and that it is definitely possible to build a better world.