Anticipating legal issues in a post-COVID-19 work environment
COVID-19 has dramatically changed the operations of public agencies. Many employees have been directed to telework, and have since remote worked for a significant period of time. Now, even as agencies begin to re-open their physical locations and invite many employees to return to their worksites, remote work will likely remain an operational reality for the foreseeable future, if not a permanent feature of agency operations. As agencies begin to reflect and plan for operating in a post-stay-at-home and post-COVID-19 workplace, they should anticipate and prepare to address the corresponding legal risks and considerations that arise in a remote work environment, including occupational safety, collective bargaining obligations, and providing remote work arrangements as a form of reasonable accommodation.
Agencies Should Anticipate an Increase in Workers’ Compensation Claims Arising from Remote Work Injuries
With more employees working from home, there will likely be an increase in workers’ compensation claims arising from work-related injuries occurring in the remote work environment. For example, California’s workers’ compensation statute defines an employee as “every person in the service of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully employed.” Such injuries may be compensable if the injury arises out of or in the course of employment, regardless of where the injury occurred. (E.g. Cal. Lab. Code, §§ 3208-3208.)
Determining whether an injury arises “out of and in the course of employment” in a remote work environment requires a fact-specific inquiry. For example, in Toohey v. Workmens’ Comp. Appeals Bd. (1973) 32 Cal.App.3d 98, a California court held that the injuries an employee sustained while grabbing his lunch from his car during an employer-authorized “beer break” was incurred during the course of employment. In another case, Kidwell v. Workers’ Comp. Appeals Bd. (1995) 33 Cal.App.4th 1130, a California state traffic officer injured her thumb at home and while off-duty, while practicing for the standing long jump as part of the physical performance program fitness test required by her employer. The court held the employee was entitled to workers’ compensation benefits, reasoning that even though the employee was at home and off-duty, practicing for the standing long jump was a reasonable expectancy of her employment.
Agencies should anticipate workers’ compensation claims that specifically arise from a remote work environment: e.g. tripping over a computer cord and sustaining injuries, burning themselves while making coffee or lunch during a scheduled (and mandated) lunchbreak, or sustaining ergonomic injuries. Agencies should look at their state-specific labor laws and court interpretations of those laws to determine how to treat work-from-home injuries for the purposes of workers’ compensation liability.
Requests for Remote Work as a Disability Accommodation May Be More Difficult to Classify as “Unreasonable”
Under the Americans with Disabilities Act, Rehabilitation Act, Title VII of the Civil Rights of 1964 and various state laws such as California’s Fair Employment and Housing Act, employers are required by law to provide reasonable accommodations to employees with disabilities. However, an employer need not provide an accommodation where it can demonstrate that the accommodation would constitute an “undue hardship” to its operation. An accommodation constitutes an undue hardship if its implementation entails significant difficulty or expense for the employer, considering factors including but not limited to, the nature and cost of the accommodation; the overall financial resources of the facility making the accommodation; the number of persons employed at the facility; the effect on expenses and resources and other operational impacts; and the composition, structure, and functions of the workforce.
The determination of whether a particular accommodation is “reasonable” is a fact-specific inquiry. For example, in Humphrey v. Memorial Hospitals Ass’n (9th Cir. 2001) 239 F.3d 1128, the Ninth Circuit Court of Appeals recognized that working from home may be a reasonable accommodation when the employee’s disability prevents them from successfully performing the job on-site, and the job can be performed at home without significant difficulty or expense.
Agencies should anticipate that employees, having experienced what it is like to work from home during the coronavirus public health emergency, may be more likely to request permanent or long-term remote work arrangements as a reasonable accommodation moving forward. While the reasonableness of a remote work accommodation remains a fact-specific inquiry, it may be more difficult for employers to establish the unreasonableness of such an arrangement especially when many employees were able to work effectively from home during the pandemic. Agencies should document employees’ productivity and operational issues or concerns that arise with remote work arrangement during the pandemic, as well as identify the essential job functions that certain job classifications were unable to perform remotely. Such information will help agencies evaluate a request to telework or remote work as an accommodation. However, to the extent an employee may be able to perform certain essential functions from home, a remote work arrangement may constitute a reasonable accommodation for at least some of the employee’s hours worked.
Remote Work Arrangements May Be a Subject of Collective Bargaining with Labor Unions
As remote work proliferates even after the public health emergency ends, labor unions may push agencies to provide benefits specifically related to a more permanent remote work environment. In addition, there may be changes to terms and conditions of employment that arise from remote work arrangements. In turn, there may be corresponding collective bargaining obligations related to such benefits and changes, which may include reimbursements for data and electricity usage; use of agency-provided equipment; setting percentages of work time employees are allowed to work remotely; establishing which classes of employees may work remotely; and implementing accountability protocols such as the use of time clocks.
The post-COVID-19 world as a whole remains uncertain. But, to some degree, remote work is here to stay for the long run. By adopting remote work policies and protocols, and anticipating legal risks and considerations, agencies can successfully prepare
Oliver Yee is a Partner and Alysha Stein-Manes is an Associate at Liebert Cassidy Whitmore, one of the largest public sector and non-profit employment and labor law firms in California. They can be reached at [email protected] and [email protected], respectively.