Social worker Dolores Loftus performed her job remotely for six months as Covid-19 surged before her bosses at a Florida school district told her to return to face-to-face contact.
Loftus had been diagnosed with post-traumatic stress disorder, generalized anxiety, and agoraphobia—the fear of confined spaces and crowds. She said in-person work would exacerbate her conditions and asked her managers for continued remote work. She sued in a Florida federal court when her request was denied.
In California, web marketing manager Jonathan Pantani also sued his former employer, Instapage Inc., which allegedly fired him after he had an anxiety attack related to Covid-19 and asked for accommodations that included extended time off to meet with a therapist and reduced responsibilities on weekends and non-working hours.
Lawsuits tied to workers’ mental health, as well as other disabilities, will likely rise as the Delta variant fuels a spike in Covid-19 infections and employers push return-to-office mandates, attorneys and other legal observers say.
And some could involve tricky legal gray areas under the federal Americans with Disabilities Act, such as when leave or telework can be reasonable disability accommodations.
“I don’t think there is any doubt that there will be a whole new raft of claims arising from mental health as a result of the pandemic,” said Frank Morris Jr., an attorney with Epstein Becker & Green PC in Washington, D.C., who advises employers on ADA issues. …
‘Fertile Ground’ for ADA Suits …
Morris, of Epstein Becker & Green, said ADA claims will be easier to prove if workers have a documented pre-existing mental health condition, but that doesn’t preclude the possibility that there could also be pandemic-induced mental health issues that could qualify for accommodations.
However, simply having fear of going into the office likely won’t pass muster, he said.
“Every mental distress isn’t an ADA-covered disability,” Morris said. “Employees will still have concerns, and whether they amount to legally protected concerns or not, employers will have to grapple with these issues pretty soon.”