Asthmatic Worker Gets Covid-Related Telework Order, For Now (1)

An asthmatic employee may work from home due to the Covid-19 pandemic, and their Massachusetts employer can’t force them to return to the office, a federal judge ruled, barring the worker’s termination for at least 60 days.

In a rare instance of a worker seeking a preliminary injunction in a disability bias case, social worker Gabriel Peeples showed that they’re likely to prevail on the merits of their claims under federal and state law, the U.S. District Court for the District of Massachusetts ruled Wednesday, using the non-gender specific pronoun to refer to Peeples.

The decision provides early evidence about how the pandemic can alter Americans with Disabilities Act cases, during both the current phase of the pandemic and a future when the virus is under control.

“Employers who previously and staunchly maintained that the essential job functions simply could not be performed away from the office will now face months of evidence of telecommuting that worked well,” said Michael Stein, law professor and executive director of Harvard Law School’s Project on Disability

Courts will also have to reconsider the scope of what respiratory-related impairments rise to a level of being classified as a disability under the ADA, Stein said.

The ruling also highlights the impact of the pandemic on the legal test for winning an emergency order. Beyond showing that they’d be likely to win on the merits, the court found that Peeples could suffer irreparable harm by losing their job in the middle of a pandemic. The court also said public health concerns weighed in Peeples’ favor, because the mental health counseling the plaintiff provides.

Stein and two other legal scholars told Bloomberg Law that they’d never seen another request for preliminary injunction in an ADA employment case.

‘Great American Experiment’

Peeples’ lawyer applauded the decision.

“It’s an excellent ruling because it makes clear something that should be unremarkable,” said Douglas B. Mishkin of Heisler Feldman & McCormick PC. “If there’s an employee with a disability who’s put at heightened risk during the pandemic, then they’re entitled to an accommodation if they can do essential functions of job and avoid the direct threat to their health that would result from being physically present in the office.”

The attorney for defendant Clinical Support Options Inc., Timothy Murphy of Skoler Abbott & Presser, didn’t respond to requests for comment.

Federal courts have generally been hostile to workers’ requests for telework as an ADA accommodation, often blindly deferring to employer claims that it’s unfeasible based on vague references to teamwork and supervision, said Nicole Porter, a University of Toledo law professor who’s written extensively on disability bias.

The pandemic has created a “great American experiment” providing evidence about how well employees can perform their jobs from home, Porter said.

“We might be at an inflection point,” said Joseph Seiner, a law professor at the University of South Carolina.

Judges may be more empathetic to requests for telework accommodations based on their experiences during the pandemic, said Seiner, a former Equal Employment Opportunities Commission attorney. The world of work is also going through a transformation, with the demands of virus safety promoting the development and spread of new remote working technologies and practices, Seiner said.

Disabled, Able to Do Job From Home

Peeples, who started working at Clinical Support Options Inc.'s Center for Community Resilience after Trauma eight days before Gov. Charlie Baker (R) declared a state emergency, is at greater risk of serious illness if they contract the virus because of their asthma, the court said.

Peeples is likely to be able to establish that asthma is a disability under the Americans with Disabilities Act, “at least during the COVID-19 pandemic,” Magistrate Judge Katherine A. Robertson said. The judge cited “limited precedent” on determining when an impairment substantially limits a major life activity during the pandemic.

Peeples is also likely to be able to show they could perform the essential functions of their job remotely, Robertson said.

They teleworked successfully for four months after the state emergency was first declared, she said. And Peeples’ manager backed their ability to continue to telework in an email to their boss, the judge added.

The Equal Employment Opportunity Commission has indicated that telework can be a viable ADA accommodation in certain situations, Robertson said.

CSO said it accommodated Peeples by providing face masks, hand sanitizer, a private work space, and other safety precautions after supervisor Sandi Walters rejected their request to continue to work from home and that Peeples “reluctantly” returned to the office briefly in July, according to the ruling.

The majority of those measures are simply workplace safety rules, Robertson said. The ADA and Massachusetts law require employers to engage workers who may need a disability accommodation in an individualized interactive process to determine what job aids they may specifically need, she said.

CSO will likely be unable to show undue hardship if required to allow Peeples to telework during the remainder of the pandemic, let alone the level of hardship needed to outweigh Peeples’s need to work off-site due to their asthma and heightened risk, the court said.

Granting Peeples preliminary relief for 60 days, or a different period if ordered by the court, from being forced to resign if required to return to the office or quit also serves the public interest given the nature of their job working with trauma and crime victims, Robertson said.

The case is Peeples v. Clinical Support Options, Inc., 2020 BL 353479, D. Mass., No. 3:20-cv-30144, preliminary injunction granted 9/16/20.