By BEN GLICKMAN and PHOEBE PINDER
For a speech therapist in Tennessee, options to work remotely have all but vanished.
In March, the pediatric disability clinic where she works transitioned to telehealth, which has allowed her and her colleagues to work remotely during the pandemic. But the state’s Medicaid partner stopped covering telehealth on June 30, and the clinic is losing money without in-person visits.
“To stay in line with our budget goals, [telehealth] is not really an option at this point,” she said, speaking on condition of anonymity to protect her job. “We have to go back and do more visits and make more money for the company.”
So, when her clinic transitions back to the office next week, she will come in to work.
Safety measures like mandatory mask-wearing were not immediately adopted by the clinic, and the speech therapist worries about patients still coming in when they have Covid-19 — the clinic relies on patients honestly reporting when they have symptoms. She worries about continuing to have regular contact with her in-laws, who are in their 70s and have health issues.
(Update: Our source let us know on July 2 “TennCare just announced they are extending coverage for telehealth until August 29th. My team is so thankful that we have another option for these kids now.” We asked if they are going back to the office, and she replied, “We are still going back this week. Some of the insurance companies end coverage before then, like Cigna is ending coverage on 7/31. Plus, there’s a small amount of clients who are refusing teletherapy because they prefer in-person, so we are trying to appease them so they don’t go to another practice.”
Uncomfortable choices
Even as cases of Covid-19 skyrocket in the southern and western United States, some states have continued their reopening plans. While states allow workplaces to slowly reopen, many employees have found themselves facing an uncomfortable choice — return to the office and risk infection, or refuse and lose their jobs.
When owners of the Chicago restaurant Uncommon Ground planned to open for indoor dining on July 1, employees took to Facebook to elicit the community’s help. The employees wrote in a neighborhood group that “management, head chefs and owners have not been enforcing CDC guidelines very heavily, and so hourly/tipped staff are rightly concerned for their safety.”
Employees had been previously told by management to “get another job if they don’t like how things are running,” according to the post. The employees asked that customers express their disapproval of indoor dining to the owners via calls and emails.
Following an outcry from community members, the owners decided to delay opening indoor dining until further notice, per an update on Facebook from employees. (The neighborhood Facebook group is not open to non-neighborhood residents; a resident shared the conversation with us from her Facebook account.)
A Madison coffeehouse
Discomfort with a lack of protections in workplaces is a common sentiment among workers, who feel that they are more likely to become infected with Covid-19 in a workplace without social distancing and other measures.
Two employees at Michelangelo’s Coffee House in Madison, Wis., say they were fired after they expressed discomfort about a lack of mask wearing to their manager and displayed a sign with “Masks Required” in the shop. One of the workers, Alexis Lynn, tweeted about the event. The next day, Michelangelo’s announced that it had implemented a mandatory mask wearing policy for employees.
“There are two choices for most employees right now: 1. Continue to work in an unsafe environment because they need the money or 2. Quit and be ineligible for unemployment,” Lynn tweeted. “This is an impossible situation for many who rely on their paychecks to live.”
In a post on Facebook, Michelangelo’s Coffee House disputed Lynn’s account of events, saying that the two employees displayed the sign without consulting with management and gave an ultimatum to the manager: “if he didn’t implement a mandatory mask policy for customers they would walk off the job within the hour.” Michelangelo’s said in the post that the two employees had previously given notice that they would be “winding down their employment,” and that the two employees “chose to walk off the job. No one was fired.”
Lynn declined to comment further, saying that she would respond to Michelangelo’s “false statements” after consulting with a lawyer.
As we were reporting this post, we heard on social media and from acquaintances of multiple conflicts between employers and employees on the return-to-the-office process. We were struck by how many of these conflicts seemed to be resolved. We also noticed that many people didn’t want to talk about this publicly, perhaps because it is uncharted territory, and because the employer and employee were seeking to find an acceptable resolution. Also employees are very conscious of the cratering economy, and are not eager to abandon a job, even if they are afraid.
Returning to colleges and universities
With many colleges and universities aiming to return to campus in the fall, professors are being asked to resume in-person instruction. Many professors who fear for their own safety or the safety of family members are seeking permission to teach remotely.
Jason Helms, a tenured associate professor of rhetoric in the English department of Texas Christian University, described his difficult situation in a tweet that has since gone viral. He requested that he be able to work remotely during the fall semester, in order to not potentially expose his 2-year-old daughter, who has a congenital heart defect, to coronavirus.
In an interview with The Chronicle, Helms stated that he assumed his request would be covered under the Americans with Disabilities Act, and was shocked when it was rejected a few days later. He was told that his request did not meet their criteria because the immunocompromising condition was his daughter’s, and not his own. Helms was later told that he should have requested something called “intermittent leave” through the Family and Medical Leave Act; F.M.L.A. leave is generally unpaid.
During a town hall for faculty and staff at the University of Iowa, one faculty member said she was a woman of color who had recently been diagnosed with an autoimmune condition and had “tremendous anxiety” about returning to in-person instruction, according to an article in The Cedar Rapids Gazette. Stephen Goddard, dean of UI College of Arts and Sciences, recommended that the faculty member seek “mental health counseling” to overcome her anxiety and teach on campus, the article said.
Stories of trouble with remote teaching requests are not unique among college and university faculty. Fearful of disappointed students and potential financial losses, many schools have promised some degree of in-person classes come fall, regardless of their faculties’ wishes. Officials at Brown University and North Carolina State University, among others, argue that remote learning is simply not sufficient, and that students will suffer without a return to in-person classes, as described in The Chronicle of Higher Education.
Professors all over the country have expressed concerns for the health of themselves and their families, and non-tenured professors fear losing their jobs if they refuse to turn up in person. Some also feel that the applications required for exemption from in-person teaching, offered at some schools, are too invasive, in most cases requiring them to disclose personal medical information about themselves or members of their families.
Faculty members at both Pennsylvania State University and the University of Notre Dame put forth a letter to administration and a petition, respectively, in both cases essentially asserting that faculty should “have the right to protect their own well-being,” and that each faculty member should be allowed to make their own decision on whether or not to return to in-person teaching.
Ultimately, some schools will be more accommodating or willing to listen to their faculty members than others. As of right now, across the country, many faculty members, as well as college administrators, are still unsure as to how exactly things will pan out in the fall.
The Americans with Disabilities Act
Like Helms, employees who do not want to return to the workplace have sought out legal protection for working remotely. One law — The Americans with Disabilities Act — may protect certain at-risk employees from being forced to return to the office.
The A.D.A. protects employees who fall under the law’s definition of disabled, which is an individual with “a physical or mental impairment that substantially limits one or more major life activities.” If an individual is considered disabled under the law, the A.D.A. prohibits an employer from discriminating against that individual based on their disability.
In addition, discrimination under the A.D.A. by an employer includes “not making reasonable accommodations” for disabled employees.
Elizabeth Pendo, a professor at Saint Louis University School of Law who specializes in disability law, said in a phone interview that “underlying health issues that could make a person more vulnerable to COVID-19… would likely also be considered disabilities.” Although Pendo pointed to a list of underlying conditions identified by the Centers for Disease Control and Prevention as a starting place, she says the list is likely non-exclusive — employees who suspect themselves to be vulnerable should “support that with some information from their doctor for example or another source.”
If an individual is considered disabled because of an underlying health issue, their employer would be required to provide reasonable accommodations, which may include working remotely.
Still, the A.D.A. has restrictions, meaning many employees are not protected.
Pendo said that simply a fear of contracting Covid-19 does not protect an employee. According to Seema Mohapatra, professor at Indiana University Robert H. McKinney School of Law, an elderly employee would also not be protected, despite being at higher risk for severe illness from Covid-19.
The ADA also protects an employee from discrimination because of a relationship or association with a disabled person — like, for example, a family member with an underlying health condition. But, the ADA does not require an employee provide accommodations for that employee. In other words, an employee cannot refuse to return to the office because of a family member’s condition.
“[The ADA] is not as easily a shield for an employee that is trying to protect their family member by not going into work,” Mohapatra said in a phone interview.
Other legal protections
Different federal laws may also provide protection for employees.
In a report on employees refusing to return to the workplace, law firm Ogletree Deakins argued that the Occupational Safety and Health Act may protect employees who return to work. O.S.H.A. protects employees in circumstances where there is “imminent danger” in the workplace.
The firm wrote:
“According to Occupational Safety and Health Administration (O.S.H.A.) guidance, an employee may refuse an assignment that involves ‘a risk of death or serious physical harm’ if all of the following conditions apply: (1) the employee ‘asked the employer to eliminate the danger, and the employer failed to do so’; (2) the employee ‘refused to work in ‘good faith’’ (a genuine belief that ‘an imminent danger exists’); (3) ‘[a] reasonable person would agree that there is real danger of death or serious injury’; and (4) ‘[t]here isn’t enough time, due to the urgency of the hazard, to get it corrected through regular enforcement channels, such as requesting an O.S.H.A. inspection.’”
But, the firm’s report also notes that it is currently unclear if Covid-19 would be considered an “imminent danger” in the workplace.
Mohapatra said that O.S.H.A. would more likely protect workplaces that have already been demonstrated as hotbeds of Covid-19, like nursing homes or meatpacking plants. “[O.S.H.A.] would help in cases where we’re talking about areas that are congregate spaces, where we have seen that there have been a lot of outbreaks,” Mohapatra said.
The Family and Medical Leave Act could also provide protection for employees, according to Mohapatra. F.M.L.A. grants employees 12 weeks of unpaid job-guaranteed leave per year for family or medical reasons. It also makes it possible to use things like paid sick leave or vacation leave to get paid.
The law includes a provision for “a serious health condition” and “to care for the employee’s spouse, child, or parent who has a serious health condition.” The law was expanded by Congress to cover more employee situations for a short period.
According to a report by law firm McCarter and English, the expansion provides leave for employees who have contracted Covid-19 or who are caring for a family member with Covid-19. But, employees cannot take leave under the law for fear of contracting Covid-19.
Employers making accommodations
Fortunately, there are some employers during this time who are putting in the effort to try to make the return to the workplace process a safe one, and who are willing to make accommodations to promote employee safety. Groups like the World Health Organization and the U.S. Centers for Disease Control and Prevention have put forth their own tips for employers, but this advice is far from individualized, and can fail to take into account specific risks of certain areas or workplaces.
Some employers have turned to seeking outside, professional help, and several companies have sprung up or altered their services to provide guidance to employers in the return to the workplace process. Our post on companies aiding the return-to-work process is here.
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Other posts in our return to the office series:
Helping companies plan their return to the office
What’s the plan for colleges and universities?
Here’s how one big New York area company is doing it
Here’s how some are returning to the workplace
Legal and other issues in the return to the office
