https://www.americancityandcounty.com/wp-content/themes/acc_child/assets/images/logo/footer-logo.png
  • Home
  • Co-op Solutions
  • Hybrid Work
  • Commentaries
  • News
  • In-Depth
  • Multimedia
    • Back
    • Podcast
  • Resources & Events
    • Back
    • Resources
    • Webinars
    • White Papers
    • IWCE 2022
    • How to Contribute
    • Municipal Cost Index – Archive
    • Equipment Watch Page
    • American City & County Awards
  • About Us
    • Back
    • About Us
    • Contact Us
    • Advertise
    • Privacy Statement
    • Terms of Service
American City and County
  • NEWSLETTER
  • Home
  • Co-op Solutions
  • Hybrid Work
  • Commentaries
  • News
  • In-Depth
  • Multimedia
    • Back
    • Podcasts
  • Resources/Events
    • Back
    • Webinars
    • White Papers/eBooks
    • IWCE 2022
    • How to Contribute
    • American City & County Awards
    • Municipal Cost Index
    • Equipment Watch Page
  • About Us
    • Back
    • About Us
    • Contact Us
    • Advertise
    • Cookie Policy
    • Privacy Stament
    • Terms of Service
  • newsletter
  • Administration
  • Economy & Finance
  • Procurement
  • Public Safety
  • Public Works & Utilities
  • Smart Cities & Technology
  • Magazine
acc.com

Hybrid Work


Work is not where you go. It’s what you do. In today’s hybrid work world, it is no longer enough to solve for the challenges of remote work or support a safe office re-entry. It’s about finding solutions to not just recover in the face of change, but to thrive and innovate. Empower your workers at home, in the office, or anywhere.

Article

Anticipating legal issues in a post-COVID-19 work environment

Anticipating legal issues in a post-COVID-19 work environment

  • Written by Oliver Yee, Alysha Stein-Manes
  • 13th July 2020

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.

Tags: homepage-featured-4 Administration News Hybrid Work Administration Article

Most Recent


  • MSPs
    The MSP downstream cyberthreat paradox: Understanding the city and county connection
    Recently the Cybersecurity and Infrastructure Security Agency (CISA) along with the FBI, NSA, and international cyber authorities issued a cybersecurity advisory aimed at protecting managed service providers (MSPs) and their customers. This high-level advisory has been gestating for some time ever since the SolarWinds and Kaseya supply chain cyber-attacks. A software supply chain attack occurs […]
  • Philanthropic group to launch assistance portal for local admins navigating federal bureaucracy
    A joint venture announced Tuesday by a group of philanthropic organizations—in collaboration with the U.S. Conference of Mayors, the National League of Cities (NLC) and Results for America—seeks to help small and mid-sized communities secure their piece of the $550 billion in funding available for local governments navigating federal bureaucracy. The digital portal will launch […]
  • Report: Nearly 95 percent of America's mayors face harassment, threats and violence
    In today’s divided socioeconomic landscape—one that’s rife with political angst—harassment of mayors has become commonplace, especially against minority leaders. Women mayors and mayors of color face more frequent and acute incidents of harassment and violence, according to new research from the advocacy organizations Equity Agenda and the Mayors Innovation Project. Nearly half of all women mayors […]
  • Report: Almost half of public sector retirees don't touch their retirement plans for a decade
    Once retired, nearly half of public sector employees aren’t taking any action with their defined contribution retirement plan funds for at least a decade, according to research from Mission Square Research Institute, which included the analysis of more than 100,000 public service data records. In their first ten years of retirement, researchers found that 48 […]

Leave a comment Cancel reply

-or-

Log in with your American City and County account

Alternatively, post a comment by completing the form below:

Your email address will not be published. Required fields are marked *

Related Content

  • Lessons from your friendly neighborhood public service employees
  • Harris County deploys next-generation security in 150 public buildings
  • How local governments can get ahead of the infrastructure wave: Strategies to mitigate risk
  • Prioritizing rapid restore leads to stronger ransomware attack recovery

Twitter


AmerCityCounty

The MSP downstream cyberthreat paradox: Understanding the city and county connection dlvr.it/SQYVjs

17th May 2022
AmerCityCounty

Philanthropic group to launch assistance portal for local admins navigating federal bureaucracy dlvr.it/SQY16G

17th May 2022
AmerCityCounty

Report: Nearly 95 percent of America’s mayors face harassment, threats and violence dlvr.it/SQTn2z

16th May 2022
AmerCityCounty

The PIO’s Ultimate Guide to Social Media dlvr.it/SQTdCK

16th May 2022
AmerCityCounty

Gain Greater Visibility Into Your Public Works Fleet dlvr.it/SQSqXG

16th May 2022
AmerCityCounty

Report: Almost half of public sector retirees don’t touch their retirement plans for a decade dlvr.it/SQKMjp

13th May 2022
AmerCityCounty

Four steps to ensure your budget prioritizes equity dlvr.it/SQJgZz

13th May 2022
AmerCityCounty

Victims of Surfside condo collapse settle for nearly $1B in class action lawsuit dlvr.it/SQJffb

13th May 2022

Newsletters

Sign up for American City & County’s newsletters to receive regular news and information updates about local governments.

Resale Insights Dashboard

The Resale Insights Dashboard provides model-level data for the entire used equipment market to help you save time and money.

Municipal Cost Index

Updated monthly since 1978, our exclusive Municipal Cost Index shows the effects of inflation on the cost of providing municipal services

Media Kit and Advertising

Want to reach our digital audience? Learn more here.

DISCOVER MORE FROM INFORMA TECH

  • IWCE’s Urgent Communications
  • IWCE Expo

WORKING WITH US

  • About Us
  • Contact Us

FOLLOW American City and County ON SOCIAL

  • Privacy
  • CCPA: “Do Not Sell My Data”
  • Cookies Policy
  • Terms
Copyright © 2022 Informa PLC. Informa PLC is registered in England and Wales with company number 8860726 whose registered and Head office is 5 Howick Place, London, SW1P 1WG.
This website uses cookies, including third party ones, to allow for analysis of how people use our website in order to improve your experience and our services. By continuing to use our website, you agree to the use of such cookies. Click here for more information on our Cookie Policy and Privacy Policy.
X