A union of federal employees has sued the Environmental Protection Agency (EPA) to show that the EPA applied its remote work policy unfairly and unevenly.
On October 20, the American Federation of Government Employees Local 704 filed a lawsuit in the U.S. District Court for the District of Columbia alleging that the EPA violated the Federal Freedom of Information Act (FOIA) by disclosing documents related to of the Telework Directive have not published.
On May 6, the union requested information on which executives will be allowed to work from home in 2022.
It also requested a copy of a 2019 telecommuting policy issued by EPA’s Air and Radiation Division that was cited when an employee’s telecommuting request was denied. According to the lawsuit, the EPA released some of the requested documents, but not all.
The EPA “is frustrating [the union’s] Efforts to adequately advocate and educate its members on EPA’s teleworking policies and their potentially unequal application to different employees,” the lawsuit states. EPA declined to comment on the allegations.
FOIA requires federal agencies to respond to public requests for records, including electronic files, to improve public understanding of government operations and provide access to government information.
Consistency is best practice
“When employers do not apply their policies fairly, consistently, or impartially, they often face an increased risk of employee-driven lawsuits and potential liability,” said H. Scott Johnson Jr., attorney at Feldesman Tucker Leifer Fidell in Washington, DC especially for federal labor laws such as Title VII [of the Civil Rights Act of 1964], where issues can arise from policies that have different impacts on the workforce. In addition, employers who implement policies that are viewed as unfair by their employees also tend to dampen morale, increase turnover, and decrease efficiency. While these costs may not be as publicized as employee lawsuits, they still have a negative impact on the bottom line.”
Unionized employers “should be aware of consistently applying all policies, including remote work policies,” said Thomas Payne, an attorney with Barnes & Thornburg in Indianapolis. “If there are disputes under the policy, unionized employers will likely need to work with the union representative, either informally or through a contractual grievance mechanism, to resolve those disputes.”
“A telework or distance working policy would be an employment condition that would normally require negotiation. This means that a unionized employer would have to negotiate before implementing such a policy,” he added. “Unionized employers would also be required to negotiate with their union on changes to the policy and actions taken under the policy.”
The COVID-19 pandemic prompted some employers to quickly implement remote working policies without much planning.
Employers “should understand that any perceived benefit they might have in terms of enforcing remote work policies without union approval is probably not worth the potential legal ramifications and long-term costs of having patently unfair remote work policies or applied unfairly,” Johnson noted.
ADA requirement
In principle, employers are not obliged to allow employees to work remotely. However, the legal requirements are different when an employee has a disability and wants to work from home.
The Federal Americans with Disabilities Act (ADA) “requires employers to make reasonable accommodations for disabled workers,” said Scott Unger, an attorney with Stark & Stark in Princeton, NJ. “As a result of the pandemic, employers have implemented remote work policies to continue business operations. Therefore, it is probably more sensible for employers to offer remote work to disabled employees who need this accommodation. The keyword is appropriate. If the job requires someone to be on-site to do their job, then working from home wouldn’t be appropriate.”
The US Commission on Equal Employment Opportunity published a guide on telework as a disability provision.
More lawsuits expected
Recently, there has been more litigation over remote work policies, “probably because more employees have been working remotely in the last three years than before,” Payne noted. These are “often disability discrimination cases involving working remotely as housing. For unionized employers, complaints related to remote work policies have also likely increased, although this information is more difficult to track as it often doesn’t end up in public courts.”
“I think we’re still in the infancy of these lawsuits, and over the next two or three years we’re going to see employees filing these cases with increasing regularity in state and federal courts across the United States,” Johnson said. “The sudden and ubiquitous manner in which the concept of remote work has become a mainstay in the workplace has deprived employers of the ability to intentionally and judiciously implement remote work policies in a systematic manner. … From a practical point of view, this is a fertile environment for unlawful acts and employee dissatisfaction.”
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