U.S. workplaces look to college fights as return to work 'turning point' looms

Employers Holdings

07/09/2021 11:00

By Tom Hals
    Sept 7 (Reuters) - A legal battle is brewing over remote
work between administrators at U.S. colleges committed to
in-person classes and some faculty with disabilities. Experts
warn it is a precursor of what awaits employers that order staff
back to the office amid the COVID-19 pandemic.
    Employment lawyers said higher education provides a key test
of who can work remotely because it is a profession
traditionally associated with in-person work.
    But COVID-19 lockdowns proved what disabled teachers have
argued for years -- that online teaching can be a successful way
to accommodate them.
    Working from home during the pandemic allowed teachers with
conditions ranging from epilepsy to genetic diseases to
eliminate the need for specialized transport, add periods of
rest to their day and ensure easy access to medicines.
    As the new academic year begins, many are finding themselves
fighting with administrators and having remote work requests
denied, an early indication of tension awaiting big companies
including Goldman Sachs  GS.N  and JPMorgan Chase & Co  JPM.N 
that have said they want workers to return to offices. 
    Under the law, employers have to comply with the Americans
with Disabilities Act (ADA), which prevents discrimination
against anyone with a disability, defined as an impairment that
substantially limits a major life activity. 
    Employees with a disability can request an accommodation,
but the employee must still perform what the business decides
are the essential job functions, which can change from lockdown
to reopening. 
    "The key question: Is presence in the workplace an essential
function?" said Jeffrey Nolan, an employment lawyer Holland &
Knight, which represents businesses.
    Alice Freifeld, a history professor, asked the University of
Florida if she could teach remotely last year and was denied
because the school said her chronic cough and allergies did not
qualify as a disability. 
    She planned to take advantage of the school's proposal for
the academic year that just started to allow classes to be
taught remotely for the first three weeks before going in
person. But just as the school year was about to start, the
online proposal was withdrawn and she was told she would have to
come into school to teach.
    "I felt powerless. I felt the only answer was to quit," she
said. She retired after 27 years at the university.
    The university said in an email that it does not comment on
individual accommodation matters and that it reviews each
request on a case-by-case basis.
    Employment law specialists said fear of contracting COVID-19
is not likely to be considered a disability, although the
Centers for Disease Control and Prevention has encouraged remote
work for those over 65.
    "I have heard from dozens and dozens and dozens of disabled
faculty members," said Lydia Brown, who advocates for disability
rights nationally. "And every person, who requested remote work
accommodations because of a very real and legitimate fear of an
increased risk of transmission and severe illness of COVID, have
been denied."
    Brown and others said they hope the disputes in academia
over remote work find their way to the courts and begin to
reshape the law. Legal experts said it will take many months
before courts hear the current remote work disputes.
    Court rulings over the past 15 years on remote work often
sided with employers without requiring much evidence that
telecommuting was unreasonable, said Arlene Kanter, a professor
at Syracuse University College of Law. She expects that to
change, thanks to the pandemic.
    "What I think we'll see now is courts will not just defer to
the employer's judgment," she said. "Employees should have the
right to explain how they can perform their job remotely, and
how they just did it if they were working remotely during COVID.
That's why I think we're at a turning point."  
    The Bureau of Labor Statistics estimates about 4% of the
workforce is disabled while advocates said the actual number
might be many times higher as people often do not disclose an
impairment.
    There is limited data on accommodation requests, but Ohio
State University told Reuters that requests for
disability-related remote work jumped 2.5 times to 510 in the
year to June 30 from the prior fiscal year.   
    Cornell University said on Aug. 11 that in-person
instruction was essential for faculty and said it would not
approve disability-related requests for remote work, touching
off a wave of criticism.
    The university clarified its policy days later to say it
would allow some remote work where it best served faculty and
students.
    Many schools such as Widener University require vaccines for
employees and students as the school returns to in-person
teaching. The president said they have used flexible schedule
arrangements to attract and retain staff.
    "We’ve done everything we can to make this work for people,"
said Widener's President Julie Wollman. "But at some point you
have to say that’s not a legitimate reason." 

 (Reporting by Tom Hals in Wilmington, Delaware
Editing by Alistair Bell)
 ((thomas.hals@thomsonreuters.com; +1 610 544 2712; Reuters
Messaging: thomas.hals.thomsonreuters.com@reuters.net))