Legal Aspects Of Remote Work You Can’t Ignore

Over the past several years, I've written several times about ongoing #COVID19 risks*, employers' responsibilities to protect employees' health, and how accomodating the health concerns of the immunocompromised, disabled and others are a vital #DEI consideration. I predicted that stringent Return to Office (#RTO) policies would end up in courtrooms to determine if working in an office is truly a vital job requirement and whether employers are accomodating the diversity of health risks people face. Fortune's article notes, "After seemingly having won the return-to-office wars, employers may be walking into a legal storm by enforcing rigid return-to-office (RTO) mandates... Rigid RTO policies are disproportionately impacting disabled employees, mothers, and older workers–and could even, in certain cases, breach the law." The Americans with Disabilities Act is over 30 years old, but it pertains very much to our current age of ever-evolving COVID variants and repeated reinfections. The ADA’s reasonable accommodation obligation includes “modifying workplace policies” and “might require an employer to waive certain eligibility requirements or otherwise modify its telework program for someone with a disability who needs to work at home.” We know people with comorbidities face additional risks from COVID infections, thus some with disabilites are filing complaints to fight for accomodations from overly strict RTO policies. And it's not just people with disablities filing claims. "Companies are facing a rise in mental health disability discrimination complaints from employees who view remote work as a reasonable accommodation. The Equal Employment Opportunity Commission (EEOC) has observed a 16% increase in such charges between 2021 and 2022, particularly for conditions like anxiety, depression, and post-traumatic stress syndrome." Then there's older workers, who say they are more likely to retire due to forced to RTO (and less likely to do so when offered remote options.) "If RTO policies disproportionately affect older employees, either by forcing them into early retirement or by making their work conditions less favorable compared to their younger counterparts, employers could face age discrimination claims." The pandemic demonstrated companies can operate with workers remote and that employees can be productive and engaged in remote or hybrid work arrangements. Overly stringent RTO demands fly in the face of those lessons learned, and that is causing a rise in claims and lawsuits. Smart employers will consider what sort of flexibility it can offer to all employees, accomodate individual employee's unique health needs, and strive to make offices and workplace as safe as possible from the continued surges of COVID infections. *See the first comment for a note on ongoing COVID risks. https://lnkd.in/gyxYmuRA

Last week, an employee showed me her accommodation request for remote work. Perfect performance record. Higher productivity metrics from home. Medical documentation supporting her request. HR's response? 'Business needs require in-office presence.' Here's what companies aren't telling you about Return to Office (RTO): They claim it's about: → "Collaboration" → "Culture" → "Team building" But I've reviewed 100+ forced RTO cases this year. The real story? Control. What employees have proven working from home: • They can exceed targets without micromanagement • They can collaborate effectively without constant supervision • They can balance family and work without sacrificing either • They can save $500+/month on commuting costs • They can maintain mental health while maintaining productivity Companies are panicking. Why? Because remote work exposed a truth: The "traditional office" wasn't about productivity. It was about power. Now, employees are fighting back - legally. And they're winning. Know your rights: • Reasonable accommodations are protected by law • Blanket RTO policies can violate ADA requirements • Retaliation for accommodation requests is illegal The future of work isn't about where you sit. It's about how you perform. And no amount of "mandatory office culture" can change that. #EmploymentAttorney #CaliforniaEmploymentLaw #EmployeeRights Disclaimer: This information is for educational purposes only and does not replace professional legal advice. It does not establish an attorney-client relationship. Please consult a qualified attorney for advice on your specific legal situation.

Employers, repeat after me: Just because the COVID pandemic has passed doesn't necessarily mean you can deny employees' requests to work remotely. Osmose Utility Services allegedly refused to accommodate an employee by letting her work remotely after she had a stroke. According to the EEOC's complaint, she worked for a provider of infrastructures and products to utility companies. Her job was responding to customer inquiries, including electronically entering tickets for services. The EEOC asserts that her job could have been done remotely. She asked to work full-time from home after her stroke, because she couldn't drive and the office lights aggravated her stroke-related headaches. Osmose allegedly denied this request. Osmose also allegedly denied her request to work from home on the 2-3 days a week she had medical appointments. While it did grant her leave to go to her appointments, it fired her after her supervisor allegedly questioned her absences and pressured her to end her appointments. So the EEOC sued for failure to accommodate and retaliation under the ADA. Employers had, pre-pandemic, been steadfastly contending that most work could only be done on premises. The pandemic proved many of them wrong in many cases. While we are no longer experiencing a pandemic, and while many employers have required --and legally can require-- a return to in-person work, that does not change an employer's obligation to provide reasonable accommodations under the ADA. It also does not change the fact that remote work can be an accommodation of a disability. Neither does it change an employer's obligation to engage in the interactive process (i.e. talk and LISTEN to your employee) when the employee requests a disability-related accommodation. The EEOC alleges that this employer failed on every count, and did not articulate any undue hardship that remote work would pose. To my eye, employers who behave this way often end up expending more time, effort and resources refusing to do what's right and what in many cases is also a legal obligation. 5 words could have taken Osmose in the right direction: "How can I help?" If Osmose would have at least done that it might even have been able to find an alternative to full-time remote work or been able to address whatever concerns it had about granting the request. But Osmose didn't even do that. If you find yourself in a similar situation with an employee, you might want to ask yourself: "What do I lose by saying those 5 words?" Or perhaps the better question might be: "What do I stand to lose if I don't at least say those 5 words?" What do you think? Feel free to share below.

Did you know that you can leverage the Americans with Disabilities Act (ADA) to request work-from-home (WFH) accommodations based on mental health conditions? This could significantly reshape the "Return to Office" (RTO) landscape, creating both opportunities and challenges for employees and employers alike. Understanding RTO Mandates and the ADA: - The ADA requires employers to provide reasonable accommodations for employees with disabilities, including mental health conditions. - Keith Sonderling, Commissioner at the EEOC, highlights the importance of engaging in an interactive process with employees who request accommodations for mental health conditions. - Brandalyn Bickner, EEOC spokesperson, emphasizes that "reasonable accommodation" includes modifying workplace policies, potentially enabling remote work for employees with disabilities. The Impact of ADA Awareness on RTO Dynamics: - Many employees are unaware they can request remote work as an accommodation for mental health conditions such as anxiety, depression, or PTSD. - Increased awareness could dramatically shift current RTO dynamics, leading to more accommodation requests. - Employees need a formal diagnosis from a licensed mental health professional to claim a WFH accommodation. This must indicate that remote work is necessary for managing their condition. Legal Precedents and Employer Responsibilities: - The EEOC has shown its teeth, as seen in the ISS Facility Services, Inc. settlement and a complaint against a Georgia company for ADA violations. - Employers must navigate legal requirements and handle accommodation requests carefully to avoid discrimination and legal repercussions. Balancing Employee Needs and Operational Efficiency: - Employers should develop clear, consistent policies for handling accommodation requests, including training for managers and HR professionals. - Creative solutions, such as hybrid work schedules, flexible hours, or designated quiet spaces in the office, can help balance remote work with in-office expectations. As the workplace continues to evolve, the interplay between mental health accommodations and remote work will remain a critical issue. Employers have a legal obligation to inform their staff of their rights under the ADA and must be prepared to accommodate legitimate mental health needs while maintaining operational efficiency. Creating an inclusive work environment that supports mental health without sacrificing the benefits of in-person collaboration is crucial. By navigating this complex landscape thoughtfully and legally, employers can foster a workplace that respects employees' mental health needs and drives business success.