With the COVID Omicron-surge in the rear-view mirror, employers across Massachusetts are calling the workforce back into the office. This push to return to the office has led many employees to question their options to work at their home offices indefinitely. So how can you asses your right to continue working from home? 

For most, the issue of continuing remote work is better framed as two separate but related legal questions: (1) is the employer’s request to return to the office being executed in a lawful manner; and (2) does the employee have a personal right to work remotely.

IS THE EMPLOYER’S REQUEST TO RETURN TO THE OFFICE UNLAWFUL?

Where many employees miss the mark is by arguing the merits of the employer’s decision. Employers are permitted to make their own business decisions- good or bad – as courts have consistently held. Evidence that an employee is equally or more productive working from home does not—standalone—make the employer’s directive to return to the office unlawful.

This evidence may, however, support the conclusion that the employer’s decision was made based on an unlawful motive, such as unlawful discrimination or retaliation. Other circumstantial evidence of an unlawful motive may include disparate treatment of similarly situated employees. An employers that selectively calls back the workforce may raise questions of unlawfully disparate treatment. 

An employee who can muster circumstantial evidence that the employer’s order to return to the office is motivated by unlawful discrimination or retaliation, may be in a position to assert legal claims.

DOES THE EMPLOYEE HAVE A RIGHT TO WORK REMOTELY?

Generally speaking, employees do not have a right to work from home. Absent an unlawful motive, an employer is typically permitted to instruct an employee as to where work must be performed, even if the chosen location seems unfair or unreasonable. Where reasonableness enters the equation, however, is where the employee has a disability, and is lawfully entitled to a reasonable accommodation.

An individual may be protected under the disability anti-discrimination statutes upon establishing that he or she is a qualified handicapped individual, meaning the individual has a physical or mental impairment that substantially limits one or more major life activities, and can perform the essential functions of the job with or without reasonable accommodation.

For some jobs, attendance at the workplace is an essential job function. For example, it would be impossible to perform your duties as a barista while working remotely. But the COVID pandemic has meaningfully altered those scenarios in which presence in the workplace is an essential job function—think telemedicine for healthcare professionals as an example.

More and more, courts are recognizing that working remotely—even on a full-time basis—may be a reasonable accommodation for a disability. In one case in Massachusetts, for example, the court actually stepped in and issued an order preventing an employer from terminating an asthmatic employee’s teleworking arrangement in late 2020. Peeples v. Clinical Support Options, Inc., 487 F.Supp.3d 56 (D. Mass. 2020). In another case out of Louisiana, a court ordered the defendants to allow a plaintiff with a pacemaker to continue to conduct business remotely. Silver v. City of Alexandria, 470 F.Supp.3d 616 (W.D. La. 2020)

It is essential to remember, though, that the right to a reasonable accommodation is inextricably intertwined with the employee’s disability. Moreover, and unfortunately, the disability of a close family member is not enough. See Lin v. CGIT Systems, No. 20-11051, 2021 WL 4295863 (D. Mass. Sept. 21, 2021). An immunocompromised employee may be entitled to a reasonable accommodation, while employee with an immunocompromised household member likely is not. 

CONCLUSION

As cliché as it sounds, the post-Omicron surge phase of this pandemic is not a return to normal, but instead yet another new normal to which we all must adapt. Whether an employee can be compelled back into the office is likely a highly case specific, fact intensive inquiry. And understanding your rights is often just the first step towards achieving your goals.