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July 22, 2024 Focus | Workplace

Reasonable accommodation or unfair expectation? Employers grapple with hybrid work policies as employees test limits

HBJ PHOTO | STEVE LASCHEVER Daniel Schwartz, a partner at Hartford law firm Shipman & Goodwin, said every employer should have a remote-work policy that is enforced.
By Andrew Larson

Zacchery Belval, 31, suffers from multiple serious health conditions and has been deemed disabled.

He has a complex congenital heart defect, an impaired circulatory system and severe anxiety that requires medication and counseling.

Belval, of Enfield, often experiences severe fatigue and is at a high risk of life-threatening infections, including COVID-19 variants, among other issues.

Yet, Belval was able to work, until recently. During the peak of the pandemic in 2020, his employer, Groton-based shipbuilder Electric Boat, began allowing many employees, including Belval, to work remotely.

His office job, which consisted mainly of editing documents submitted by engineers, was conducive to remote work.

When Belval’s manager ordered him to return to the office, he continued working from home and, on Oct. 12, 2021, took leave under the Family Medical Leave Act based on a letter from his doctor, who said Belval should not physically return to work in order to avoid contracting COVID-19.

Electric Boat offered to allow him to work from home “one or two days a week,” which his medical team considered insufficient because it would have placed Belval at “substantial risk.”

After repeatedly requesting a reasonable accommodation that would enable him to work remotely full-time, and providing updated information from his medical providers, he was ordered to report to Electric Boat’s Occupational Health Center by Aug. 21, 2023.

He didn’t return and was terminated.

Last October, Belval filed a federal lawsuit against Electric Boat over the firing. The description of his medical conditions and allegations involved in the case were pulled from court records.

Four years after the pandemic made remote work more palatable to employers, many companies are still grappling with how to balance workers’ desire for flexibility with employers’ needs, including monitoring worker productivity.

According to the latest data from Gallup’s hybrid work indicator, among U.S. work locations with remote-capable jobs, 27% of employees are exclusively remote, 54% are hybrid and 20% are exclusively on-site.

Daniel Schwartz, a partner at Hartford-based law firm Shipman & Goodwin who focuses on employment litigation, said many employers have created hybrid work policies, but the amount of flexibility afforded varies by industry.

“I think there are some employers that don’t really care where their employees are working, as long as the work gets done,” Schwartz said. “And others say it’s more important for our culture to be in the office more frequently. But it’s really hard to generalize, because we’re just not seeing consistency across the board.”

One thing Schwartz can say for certain, however, is that every employer should have a remote-work policy that it can enforce.

“Having a policy that isn’t being followed doesn’t do anyone any favors, so have a consistent approach and then enforce it to the extent that you can,” Schwartz said. “And if you have a policy that says that you need to be in the office, and no one follows it, then it’s not worth the paper it’s written on.”

Is remote work reasonable?

Enforcing policies means that some employers, like Electric Boat, have had to let employees go. But the legality of an employer’s denial of full-time remote work as a reasonable accommodation is still being tested.

Belval’s suit, filed in New Haven federal court, claims Electric Boat violated the Americans with Disabilities Act (ADA) by engaging in disability discrimination and failing to provide a reasonable accommodation, in addition to disability discrimination in violation of the Connecticut Fair Employment Practices Act.

The suit, which is in the discovery phase, says Electric Boat’s failure to accommodate Belval’s disability caused him to suffer harm, including lost wages and benefits, along with pain, suffering and emotional distress.

He is seeking reinstatement to his job, seniority and salary, along with awards for economic losses, compensatory damages, and attorney’s fees and costs.

Electric Boat declined to comment for this story.

In Electric Boat’s answer to the complaint, the company said Belval was approved to work remotely three days a week and on-site two days a week. It also said he was required to report to the Occupation Health Center by Aug. 21, 2023, or “it would regard him as having resigned his position.”

The company denies many of Belval’s other allegations, including that its actions were discriminatory or in violation of the ADA.

Belval is represented by Hartford civil rights attorney Peter Goselin, who did not respond to multiple inquiries from the Hartford Business Journal.

The suit boils down to whether remote work is a reasonable accommodation and whether working from the office is considered essential to Belval’s job, Goselin told The Washington Post.

Two circuit courts have ruled that remote work could be considered reasonable, he told the publication.

Patrick McHale

Attorney Patrick McHale, of Hartford-based Kainen, Escalera & McHale, who is not involved in the case, said work-from-home policies during the pandemic created a basis for employees to claim that a remote work arrangement is a reasonable accommodation.

“When you have a track record or a history of having allowed people to work from home, it becomes hard to argue later that if someone with a disability presents a request to work from home, provided that the person is able to perform the duties of the position with that accommodation, it becomes a hard strategy for a business to refuse,” McHale said.

Work or vacation?

Remote work policies vary in their level of flexibility.

Some employers’ policies address whether “working remotely” is limited to working from home, or whether alternative locations are allowed. For example, Schwartz said he met an employee who worked remotely from a beach. Not all employers would allow that amount of flexibility, as there are liability issues involved, he said.

Also, when employers have employees working remotely in other states, it can create confusion about which state’s laws apply. For example, if a person works at home in Connecticut for a company based in New York, which state’s employment laws apply?

It’s often unclear.

“What if the employee gets injured at home?” Schwartz said. “Is it a worker’s comp injury in New York or in Connecticut? There are all these issues that I think employers have had to grapple with as they accept more hybrid work.”

McHale said employers that allow hybrid work seem to have arrived at a consensus that three is the ideal number of days for in-person work.

“That’s the most common expectation that employers are having,” McHale said. “But there’s no doubt that the hybrid model of working at home and in an office is here to stay, because employees have enjoyed it.”

Employee perk

In light of the ongoing worker shortage, McHale said employers are eager to retain and attract talent, and many employees consider the ability to work remotely a significant priority.

According to a recent Gallup survey, six out of 10 employees with remote-capable jobs want a hybrid-work arrangement. About 33% prefer fully remote work; less than 10% prefer to work fully on-site.

Even in jobs that could be 100% remote, McHale said it’s important for workers to spend time in the office together.

“I think businesses have concluded that for the purposes of mentoring, and employee interaction and team building, it’s important that employees come together in a workplace for at least some portion of the workweek,” McHale said. “Having everybody siloed in their homes has drawbacks.”

While compromises are occurring on both sides of the bargaining table, McHale said there are times when an employee and their employer reach an impasse.

“Businesses need to be reasonable in terms of their expectations, and employees need to be reasonable in terms of what reasonably their employer could expect and why,” McHale said. “95% of the time, both sides are reasonable, and employees can work from home for a few days a week, and if there’s a need for more than a couple of days, it gets worked out and there are no disputes about it. But it’s when one party or the other expects the extreme — ‘always this way, or never that way’ — that you see people getting litigious.”

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