The Covid-19 pandemic’s test of mass telework for office workers has reached an inflection point as return-to-office mandates take shape and legal battles loom over employee requests to stay at home.
The desire of some businesses to return to normalcy has led to a spike in requests from workers with disabilities—those with chronic illnesses that put them at risk for severe Covid infection, anxiety and depression, and other mobility impairments— for remote options as an accommodation under federal disability law, employment attorneys say.
Legal battles have begun playing out in court when those have been denied.
Meanwhile, workers have reported quitting rather than reporting back in person, as many companies have reinforced the value of office culture. Employers largely have the power to fire anyone who doesn’t want to work in an office, but their argument may be weakened if they refuse to accommodate a disabled employee who has been working remotely for more than a year.
“Employees have gotten very comfortable as a whole working remotely. The experiment went better than expected,” said Cristina Portela Solomon, a labor and employment partner at Foley & Lardner LLP in Houston, who represents employers. “There are employers that are eager to return to a new normal, but they can no longer knee jerk say no. It has definitely opened the door to activity that was once taboo.”
Civil rights groups have long urged companies to be more open to remote work where possible, arguing it can help tamp down on discrimination against those with disabilities, older workers, or caregivers.
As Covid-19 restrictions lift in many states, some major companies, including Citigroup Inc.,
JPMorgan CEO Jamie Dimon previously told Bloomberg that the personal relationships that can build in-person and in offices remain critical. “There are huge weaknesses in a Zoom world,” he said.
Companies didn’t report a decline in productivity during the pandemic, according to a PriceWaterhouseCoopers study released earlier this year, but a majority still wanted to see workers return. A recent survey from Digital.com found that while about 50% of employer would consider flexible options, another 40% would fire workers who don’t come back.
More than 60% of pandemic-related employment cases from the last year involved an employer rejecting of a telework accommodation, said Brian East, an attorney with Disability Rights Texas, who testified before the U.S. Equal Employment Opportunity Commission during an April hearing on Covid-19 discrimination issues.
East said he is seeing a lot of cases during the pandemic where after telework was permitted or required, the employer later denied that accommodation. The cases involve risk-factor disabilities and mental health conditions.
A recent study by Rutgers University professors found that workers with disabilities may benefit from expanded work-at-home opportunities.
“For years employers said it was too difficult to allow remote work,” said the study’s co-author Lisa Schur, a Rutgers University professor and director of the Program for Disability Research. “We are in the middle of a major change for the future of work.”
Sarah Blahovec, who has battled Crohn’s disease for more than a decade, said she feared asking for remote work accommodations at the beginning of her career as she hunted for policy roles in Washington, D.C. Her hour-long commutes could be draining, with regular body aches and flu-like symptoms.
“It’s challenging to be in a situation that isn’t flexible,” said Blahovec, who currently works for the National Council on Independent Living, which offers remote options. “I feared that bosses would hold my disability against me in a difficult way to prove.”
During the pandemic, workers had “this radical access” that’s now being “taken away” with some return-to-office mandates.
“It will narrow the job market,” she said.
Legal Land Mines
There remain legal land mines for companies when facing requests for remote work.
In a discrimination charge filed with the EEOC, a professor last week accused her university of forcing her back to work during the pandemic despite her heart condition.
Workers have also sued in court under the Americans with Disabilities Act, such as a pregnant human relations officer in Wisconsin who had gestational diabetes and was allegedly denied telework even though she had already been working remotely. Another worker in Florida, who said the pandemic exacerbated her mental health issues, sued her employer after it rejected her work-from-home accommodation request.
Last fall, a Massachusetts federal court allowed an asthmatic worker’s telework accommodation lawsuit to move forward. That case settled in January, but it represented a shift from courts typically sympathetic to businesses that said in-person work was essential.
Before the Covid-19 pandemic, employers generally won the majority of rulings over whether they can reject workers’ requests for telework as a disability accommodation, according to a 2019 Bloomberg Law analysis.
It’s too early to determine the pandemic’s full effect on the legal landscape, but it will be harder for an employer to argue in court that remote work is a burden on business operations, said Sharon Masling, a partner with Morgan Lewis & Bockius LLP, who advises employers.
“It will be more challenging for an employer to show that working on site is an essential function of the job,” Masling said. “For people with disabilities or those with caregiving responsibilities, telework has been a bit of a silver lining from the pandemic. I think it has definitely changed the mindset.”
The EEOC has argued for years that telework can be a reasonable accommodation. In Covid-19 guidance, it said that telework during the pandemic “could serve as a trial period that showed whether or not this employee with a disability could satisfactorily perform all essential functions while working remotely, and the employer should consider any new requests in light of this information.”
‘Both are Necessary’
Some workers with disabilities see the value of in-office work.
Carolyn Cannistraro, a financial planner executive on Wall Street, hid that she has multiple sclerosis, until it became impossible at work because she eventually needed a cane to walk.
She said she’s glad that the pandemic has led to more remote work, but her role is client-facing, and she thinks permanent work-from-home could be a disadvantage.
“I do get concerned for those who work only from home and don’t get the water-cooler experience,” she said. “Both are necessary.”
Conrad Reynoldson, a Seattle-based disability rights attorney, said his office adjusted to virtual meetings, but his staff is anxious to return. He would like to go back to the office, but health needs require him to be remote until the U.S. reaches a higher level of immunity.
He’d have to withdraw from the cases he’s worked on, if forced to go in person. He said he remotely argued before a federal appeals court during the pandemic, something that previously wasn’t possible.
“ It clearly can be done,” he said. “All the arguments against it are undermined.”