- Elon Musk’s edict that workers could no longer work from home and would need to work long and intense hours to remain with the company violates the Americans With Disabilities Act, claims a class-action lawsuit filed by a former employee (Borodaenko v. Twitter, Inc., No. 3:22-cv-7226 (N. D. Calif. Nov. 16, 2022)). The suit also raises concerns that workers receiving severance agreements would “be asked to sign away their rights without notice that they have legal claims of discrimination and that these legal claims have already been filed on their behalf.”
- “Many disabled employees were able to perform their jobs adequately with the reasonable accommodation of working remotely, rather than from a physical Twitter office,” the complaint reads. “Musk’s declaration, however, that almost all employees would need to work out of physical offices made it not possible or viable for many disabled employees to continue their jobs.”
- After Musk’s return-to-work announcement, the plaintiff, an engineering manager for the company since June 2021, informed his manager that, as a cancer survivor, he was at high risk for COVID-19 and couldn’t work from the office while the pandemic was ongoing. He was terminated Nov. 15 for violating company policy, according to the suit. Twitter could not immediately be reached for comment.
The pandemic forced a lot of workplaces to shift to remote arrangements out of safety concerns. But now, as employers have tried to transition back to in-office work, they could be running afoul of the ADA if they don’t provide reasonable accommodations to those with disabilities. If work had successfully been completed at home before, it could be difficult to prove employees’ need to be on site to meet their job requirements, lawyers say.
The U.S. Equal Employment Opportunity Commission in September 2021 filed a discrimination case against ISS Facility Services Inc., a facility management services company, for not permitting a worker with a disability to work remotely two days per week once the facility was reopened during the early months of the pandemic. Employees had been working remotely four days per week from March through June 2020.
“Denying a reasonable accommodation and terminating an employee because of her disability clearly violates the ADA at any time. In light of the additional risks to health and safety created by COVID-19, it is particularly concerning that an employer would take this action several months into a global pandemic,” Marcus Keegan, regional attorney for the EEOC’s Atlanta District Office, said in a news release at the time.
But remote work isn’t the only accommodation employers can make for workers with disabilities. They also can look at ways to reduce exposure for workers at high risk for COVID-19 through mitigation efforts, the EEOC said.