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

[September 07, 2021] By Tom Hals

(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 and JPMorgan Chase & Co 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 But just as the school year was about to start, the online proposal was withdrawn and she was told she would have to come into school to teach.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.

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"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)

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