Amanda DeMatteis: Hi, Josh.
Josh Goodbaum: Hi, Amanda. What are we talking about today?
DeMatteis: Let’s assume a client comes in to see you and they say, “Josh, I worked from home all during COVID, even for a little bit of time after COVID. Now my employer wants me to go back into the physical office, and I just don’t want to. What can I do?”
Goodbaum: Well, what you can do depends on your circumstances. You don’t have a right, in general, to dictate the terms or conditions of your employment. You can’t tell your employer — let’s say you’re in a five-story building – “I want to be on the fourth floor” or “I want an office with a window.” Or rather you can try to dictate, but they can say no, and then you might not be working there anymore.
So the question is really, “Is there a law I can use to force my employer to give me certain things?” And the answer is yes. It’s called the Americans with Disabilities Act (ADA). That’s a federal law; there’s a state corollary called the Connecticut Fair Employment Practices Act (CFEPA). But in order to leverage those laws, you have to be disabled.
Now, a huge percentage of Americans are disabled in one way or another. And one of the rights that comes with being disabled is the ability to require your employer to give you what’s called a reasonable accommodation.
We’ve explained reasonable accommodations in others of our videos, but basically, your employer has to give you what’s necessary for you to be able to do the essential functions of your job so long as that accommodation does not create an undue burden for the employer. It’s a very fact-specific inquiry.
So let’s say that you have asthma and your asthma is exacerbated by working in a large office setting or by the HVAC system that they have at work. Well, it might be a reasonable accommodation for you to work from home.
But your right under the ADA and the CFEPA is not just to identify a reasonable accommodation and demand it; your right is to tell your employer what your disability is, suggest an accommodation, and then have an accommodation provided that would allow you to do the essential functions of your job. You’re not entitled to the specific accommodation that you’ve requested.
So imagine again – in this asthma situation – if they can replace the HVAC or put you in an office with a different HVAC system or with a different air quality or provide you with an air purifier or have you wear a mask at work. Well, all of those things might be reasonable accommodations under the context. So in that situation, you don’t have a right to work from home.
However, there are some conditions where you have a right to work — where working from home is going to be basically the only reasonable accommodation.
It used to be, before COVID, that work from home was widely regarded as an undue burden on the employer – in other words, a not reasonable or an unreasonable accommodation. Courts would say things like, “Well, who could get their job done effectively from home? Employers are entitled to have their workforce in the workplace.”
But COVID really disproved a lot of that. We were all working from home, or many of us who were lucky enough to be able to work from home were working from home, for weeks or months or even years. And so what we’ve been able to show is that working from home is, in a lot of circumstances, a reasonable accommodation.
But that doesn’t mean it’s reasonable for everybody. It might be reasonable for a legal staff member to work from home in our law firm, but it might not be reasonable for an elementary school teacher who needs to be physically, visually monitoring students to work from home. So, it’s a really context-specific question.
The short answer, Amanda, is: if you have a disability, there is a possibility that working from home is a reasonable accommodation. And that’s something that you can pursue on your own or you can talk with an employment lawyer about pursuing.
DeMatteis: Valuable for people to know. Thank you, Josh. We’ll see you next time.