Social worker Dolores Loftus performed her job remotely for six months as Covid-19 surged before her bosses at a Florida school district told her to return to face-to-face contact.
Loftus had been diagnosed with post-traumatic stress disorder, generalized anxiety, and agoraphobia—the fear of confined spaces and crowds. She said in-person work would exacerbate her conditions and asked her managers for continued remote work. She sued in a Florida federal court when her request was denied.
In California, web marketing manager Jonathan Pantani also sued his former employer, Instapage Inc., which allegedly fired him after he had an anxiety attack related to Covid-19 and asked for accommodations that included extended time off to meet with a therapist and reduced responsibilities on weekends and non-working hours.
Lawsuits tied to workers’ mental health, as well as other disabilities, will likely rise as the Delta variant fuels a spike in Covid-19 infections and employers push return-to-office mandates, attorneys and other legal observers say.
And some could involve tricky legal gray areas under the federal Americans with Disabilities Act, such as when leave or telework can be reasonable disability accommodations.
“I don’t think there is any doubt that there will be a whole new raft of claims arising from mental health as a result of the pandemic,” said Frank Morris Jr., an attorney with Epstein Becker & Green PC in Washington, D.C., who advises employers on ADA issues.
The school board of Lee County, Fla., denied the allegations in the Loftus case, and attorneys for Instapage didn’t immediately respond to a request for comment.
RTO’s Mental Health Impact
Several recent studies have found that return-to-office plans can have a negative impact on mental health.
Roughly one in three workers reported strain to their mental health, and those who experienced declines were five times more likely to report taking on reduced responsibility at work, according to a June study from
Meanwhile, researchers at the University of California, Los Angeles found in an August study that jobs and family strain can lead to depression among workers.
Mental health isn’t easily acknowledged by companies, historically, and removing stigmas around these conditions may prove an uphill battle for workers and employers, said Jennifer Mathis, director of policy and legal advocacy at the Bazelon Center for Mental Health Law.
“It’s always been challenging. That was there before the pandemic. There continue to be a lot of prejudicial attitudes,” Mathis said. “Employers assume they are requesting accommodations they don’t need. It’s based on symptoms that person experiences and it’s not the same as producing an X-ray.”
‘Fertile Ground’ for ADA Suits
The new dynamics triggered by Covid-19 create “fertile ground” for a number of ADA challenges, including ones based on mental health accommodations, said Benjamin Yormak, with Yormak Employment & Disability Law in Florida, who represents Loftus. He said courts have historically been skeptical of such requests.
“The fluctuation and uncertainty of the current situation plays on mental health more than physical health,” Yormak said.
Morris, of Epstein Becker & Green, said ADA claims will be easier to prove if workers have a documented pre-existing mental health condition, but that doesn’t preclude the possibility that there could also be pandemic-induced mental health issues that could qualify for accommodations.
However, simply having fear of going into the office likely won’t pass muster, he said.
“Every mental distress isn’t an ADA-covered disability,” Morris said. “Employees will still have concerns, and whether they amount to legally protected concerns or not, employers will have to grapple with these issues pretty soon.”
The U.S. Equal Employment Opportunity Commission, which enforces the ADA in the workplace, acknowledged in its pandemic guidance that employees with pre-existing mental health conditions could have a harder time adjusting to life—and work—during a public health crisis.
“I anticipate there will be a flood of litigation from workers who want to continue to work from home,” said Jeff Thurrell, a Fisher & Phillips LLP partner in Irvine, Calif.
Employers generally can deny accommodations that cause an “undue burden” on business operations. When dealing with requests for extended telework, it’ll be more difficult for employers to raise that defense if they’ve allowed workers to be remote for more than a year, Thurrell said.
Before the pandemic, courts were reluctant to side with workers in these disputes, but that could change with the pandemic’s mass telework experiment. With anxiety and stress on the rise, it’s expected to be a common accommodation claim.
“Mental health issues go up and down, and become hard to manage,” Thurrell said. “They continue to have a daunting task and could get overly frustrated by the unpredictability. Mental health issues are always the most challenging to wrestle with for employers.”
Delta Surge Stress
Workers have reported quitting rather than going back to the office, and the pandemic has led many to think about how they want to balance their time, said Darcy Gruttadaro, director of the Center for Workplace Mental Health. There’s been a growing awareness around mental health, and businesses are working to catch up, she said.
“Workers are looking for other opportunities and that hasn’t been lost on employers. They are thinking, ‘How do we retain our top talent, and also ensure high performance and productivity?’” Gruttadaro said.
She also acknowledged, “We haven’t overcome the stigma yet. It all comes down to the openness and willingness to address mental health.”
Mental health concerns come in many forms for employers to grapple with, and workers often fear coming forward, said Terri Rhodes, chief executive officer of the Disability Management Employer Coalition. This has increased amid the pandemic, and in the new reality as the delta variant has taken hold, she said.
“Workplace mental health has been dubbed the ‘second pandemic,’” Rhodes said, observing that many employers have decided to walk back their requirements to return to the office. “Mental health impacts the employees’ ability to be productive, and managers need to learn to understand when employees are struggling.”