Ask The Lawyer By: Daniel A. Gwinn, Esq. – Remote Work?
MANAGER’S FLIP-FLOP ON REMOTE WORK MAY VIOLATE WORKER’S RIGHTS
QUESTION: Last fall, I interviewed for a position editing technical copy for a large company. I advised the manager that I need to work remotely because I have severe environmental allergies coupled with asthma — normal cleaning products or a co-worker’s perfume are enough to trigger a bad attack and send me to the hospital. He said it wasn’t a problem, joking that “everyone’s working remotely,” and I was hired. Until last month, everything worked out well: I enjoyed the work, I believe I did it well, and I interacted with my co-workers via Zoom meetings.at meetings Then, the manager sent an email stating that physical attendance at bi-weekly meetings would now be required. When I explained that I could not attend in person because of my severe allergies and asthma, he told me I was fired. I think this is very unfair; he knew I couldn’t come to the office when he hired me, and I’ve been able to do my job just fine from home.
ANSWER: Your former manager needs to read up on the Americans with Disabilities Act (ADA), which — if your recital is accurate — he violated.
The federal law, which applies to private employers with 15 or more employees, requires employers to make “reasonable accommodations” for otherwise qualified workers living with disabilities. The law defines disability broadly as “a physical or mental impairment that substantially limits a major life activity” — and work is defined as a major life activity.
An accommodation is any change or adjustment to a job or work environment that allows a qualified employee with a disability to perform the “essential functions” of a job. The law doesn’t require employers to give a worker living with a disability any accommodation, only one that is “reasonable.” An accommodation is not reasonable if it would require the employer to eliminate an essential part of the employee’s job duties, or assign those duties to someone else, or if it would cause “undue hardship” to the employer – whether because it would be too costly to implement, would cause more than minor disruption, or would significantly alter the way the employer does business.
It might not be reasonable, for example, for a small employer with a slim profit margin to be asked to hire a full-time sign language interpreter for its one deaf employee, or for a truck driver who develops severe cataracts to ask to have “driving” eliminated from his job description, or for a sales representative to ask to stop dealing with clients. And a request by a blind worker to be allowed a seeing-eye dog could be viewed as an “undue hardship” if the members of the team she worked with were highly allergic to canines. In those cases, however, the employer and worker need to work together in an “interactive process” to see if there might be an accommodation that would be reasonable. (In fact, under the ADA, an employer’s refusal to engage in this interactive process is itself a violation of the law.)
But, as you tell it, your manager knew that you were living with a disability and accommodated you for six months without a problem — two facts that pretty clearly indicate that the accommodation was reasonable under the circumstances and that it does not cause the employer any “undue hardship.” More and more companies are finding that workers who have been working remotely during the pandemic are unwilling to come back to the office full-time. In recent Microsoft survey, some 73 percent reported wanting to continue to work from home, or to work a hybrid schedule once offices reopen. Some workers feel very strongly about the issue. According to a January survey in USA Today, 30 percent of professional workers said they would quit if they had to return to the office. In contrast, many employers, especially in the financial industry, cannot envision a future with remote work.
No matter how employers may feel about it, a claim that allowing an employee to work from home is an “undue hardship,” is undermined where the employee has worked successfully from home for a year or more.
Note that employers are only required to accommodate “otherwise qualified employees.” If you are unable to perform the essential elements of your job for reasons unrelated to your disability, your employer would not be required to give you an accommodation. For example, a taxi driver who lost his driving license would not be “otherwise qualified” for his position; nor would a copy editor with a hazy idea of grammar, spelling and style.
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ASK THE LAWYER
By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law
GWINN LEGAL PLLC
900 Wilshire Drive, Suite 104
Troy, MI 48084
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