Social worker Dolores Loftus did her job remotely for six months as Covid-19 spiked before her bosses in a Florida school district told her to return to face-to-face contact.
Loftus was diagnosed with post-traumatic stress disorder, generalized anxiety, and agoraphobia – fear of confined spaces and crowds. She said that doing personal work would make her conditions worse and asked her superiors to continue working remotely. She was suing in federal court in Florida when her motion was denied.
In California, web marketing manager Jonathan Pantani also sued his former employer Instapage Inc., who allegedly fired him after suffering a Covid-19-related anxiety attack and asked for accommodation that allowed extended time off to meet with one Therapists and reduced responsibilities included weekends and non-working hours.
Lawsuits related to workers’ mental health and other disabilities are likely to increase as the Delta variant fuels a surge in Covid-19 infections and mandates push mandates to return to the office, lawyers and other legal watchers say.
And some could include tricky legal gray areas under federal law for Americans with disabilities, such as: B. when vacation or teleworking can be reasonable accommodation for the disabled.
“I don’t think there will be a whole host of new mental health claims as a result of the pandemic,” said Frank Morris Jr., an attorney at Epstein Becker & Green PC in Washington, DC, who advises employers on ADA issues.
The Lee County, Florida School Board denied the allegations in the Loftus case, and Instapage attorneys did not immediately respond to a request for comment.
Effects of RTO on mental health
Several recent studies have found that plans to return to the office can negatively impact mental health.
According to a June study by management consultancy McKinsey & Company, around one in three workers reported having suffered mental health problems, and those who experienced deterioration were five times more likely to report taking on less responsibility at work.
Meanwhile, researchers at the University of California at Los Angeles found in an August study that jobs and family stresses can lead to depression in employees.
Mental health has not historically been easily recognized by companies, and removing the stigma of these conditions can prove to be an uphill struggle for workers and employers, said Jennifer Mathis, director of policy and legal representation at the Bazelon Center for Mental Health Law.
“It has always been a challenge. That was there before the pandemic. There are still many prejudices, ”said Mathis. “Employers assume that they are requesting accommodation that they don’t need. It’s based on symptoms a person is experiencing, and it’s not the same as an x-ray. ”
‘Fertile soil’ for ADA suits
The new momentum sparked by Covid-19 creates “fertile ground” for a number of ADA challenges, including those based on mental health adjustment, said Benjamin Yormak of Yormak Employment & Disability Law in Florida, who represents Loftus . He said courts have been skeptical of such requests in the past.
“The fluctuation and uncertainty of the current situation plays more on mental than physical health,” said Yormak.
Morris of Epstein Becker & Green said ADA claims are easier to prove when workers have documented pre-existing mental illness, but that doesn’t rule out the possibility that there could also be pandemic-related mental health problems that could qualify for shelter.
The mere fear of going to the office, however, is unlikely to exist, he said.
“Not every mental disorder is an ADA-covered disability,” said Morris. “Employees will still have concerns, and whether or not they are legal concerns, employers will have to deal with these issues pretty soon.”
The U.S. Equal Employment Opportunity Commission, which enforces the ADA in the workplace, acknowledged in its pandemic guidelines that employees with pre-existing mental illnesses may find it harder to adapt to life – and work – during a public health crisis .
“I expect there will be a spate of litigation from workers who wish to continue working from home,” said Jeff Thurrell, a partner at Fisher & Phillips LLP in Irvine, California.
In principle, employers can refuse accommodation that represents an “unreasonable burden” for business operations. When processing requests for extended teleworking, employers will find it more difficult to raise this objection if they have allowed workers to be remotely for more than a year, Thurrell said.
Prior to the pandemic, courts were reluctant to side with workers in these disputes, but that could change with the pandemic’s mass teleworking experiment. Given the mounting anxiety and stress, this is expected to be a more common shelter claim.
“Mental health problems go up and down and become difficult to manage,” Thurrell said. “You continue to have a daunting task and may be overly frustrated by the unpredictability. Mental health problems are always the biggest challenge for employers. “
Delta surge stress
Workers have reported that they preferred quitting rather than returning to the office, and the pandemic has left many thinking about how to divide their time, said Darcy Gruttadaro, director of the Center for Mental Health at Work. There is growing mental health awareness and companies are working to catch up, she said.
“Workers are looking for other opportunities, and that has not escaped the employers’ attention. They think, ‘How can we retain our top talent while ensuring high performance and productivity?’ ”Said Gruttadaro.
She also admitted, “We haven’t overcome the stigma yet. It all comes down to openness and willingness to deal with mental health. ”
Mental health problems come in many forms that employers have to deal with, and workers are often afraid to come forward, said Terri Rhodes, chief executive officer of the Disability Management Employer Coalition. This has increased amid the pandemic and in the new reality as the Delta variant caught on, she said.
“Mental health at work has been labeled the ‘second pandemic,'” said Rhodes, noting that many employers have decided to roll back their requirements in order to return to the office. “Mental health affects employee productivity, and managers need to learn to understand when employees are struggling.”
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