A doctor’s note may be the best way for a remote employee to avoid their company’s return-to-office mandate.
US employees who are angry over RTO orders don’t really have any legal recourse to fight them aside from using a medical reason to justify working from home, according to employment attorneys.
“Outside of medical reasons for your own safety and the safety of someone in your household, you really don’t have any recourse — you either go in or you don’t go in,” Ron Zambrano, the employment litigation chair at the California law firm West Coast Trial Lawyers, told Business Insider.
Remote employees who argue that returning to the office is merely a disruption to their lifestyle essentially have “zero chance” to successfully challenge an RTO mandate in the courts, Zambrano said.
Unless you can claim a specific legal right, an employer can do as they please, he added.
Employers could land themselves in legal hot water and face liability under certain state laws and the federal Americans with Disabilities Act if they were to reject a doctor-prescribed “reasonable accommodation” for an employee to work from home, Zambrano said.
If an employer has a strict return-to-office policy and ignores those requests “whether it’s a COVID issue or a new injury that the person just cannot show up to work, but can do their job remotely,” then the employer could end up in hot water, he said.
However, according to Domenique Camacho Moran, a partner at the law firm Farrell Fritz in New York, an employee having an illness or disability does not automatically guarantee that remote work is the most suitable accommodation.
Employees cannot select their accommodations, said Camacho Moran, who tends to represent management in employment-related matters, told BI.
“They must be accommodated if they have a disability that requires accommodation, but it’s not a choice as to which accommodation,” she said.
Reasonable accommodations under the ADA can include modifying a work schedule or workplace setting, as well as moving to remote work.
Camacho Moran said that if a worker breaks their leg and cannot commute into the office, working from home — assuming the job can be done remotely — would be considered a “reasonable accommodation.”
Other cases are less clear, she said.
“There are some cases where the employee will say, ‘I have this disability, and I need to work remotely, and my doctor says so,'” said Camacho Moran. “Let’s be clear, why is remote work addressing that disability?”
Some workers have filed lawsuits against their companies or charges with the National Labor Relations Board over return-to-office mandates.
Late last year, Connecticut resident Zacchery Belval sued his former employer, submarine builder Electric Boat, in federal court over allegations that his rights were violated under the ADA and the Connecticut Fair Employment Practices Act after he was fired from his designer job for not returning to the office.
“They just said either you come back … or you’re fired,” Belval told The Washington Post in a report published in May. “It was literally screaming matches with management every day saying, ‘Hey, this is about health,’ and management going, ‘We don’t care.'”
Belval and attorneys for Electric Boat did not immediately return a request for comment by BI.
Belval’s lawsuit, which has been viewed by BI, says he suffers from several serious health conditions, including a complex congenital heart defect, and that he had provided doctor’s notes recommending that he continue to work from home.
The lawsuit alleges the employer “discriminated” against Belval due to his disability and “refused to provide him with reasonable accommodations that would ensure his ability to perform the essential functions of his job.”
Legal proceedings in the case are ongoing.
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