Nancy Gunzenhauser Popper Quoted in “Return-to-Work Mandates Tested in ACLU’s South Carolina Case”

Bloomberg Law Daily Labor Report

Nancy Gunzenhauser Popper, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s New York office, was quoted in the Bloomberg Law Daily Labor Report, in “Return-to-Work Mandates Tested in ACLU’s South Carolina Case,” by Erin Mulvaney.

Following is an excerpt:

The American Civil Liberties Union’s legal challenge to a South Carolina return-to-work order for state employees points to broader legal questions that other jurisdictions, and private businesses, will face if they hasten a return to normalcy.

Citing a decline in new Covid-19 cases and hospitalizations, Gov. Henry McMaster in March ordered state agencies to “immediately expedite” the return of non-essential state employees to in-person work by the beginning of this month.

The ACLU’s lawsuit, filed in state court on April 5, said the Republican governor exceeded his authority and argued that his order would disproportionately harm women, caregivers, people of color, and workers with disabilities, in violation of anti-discrimination laws including Title VII of the 1964 Civil Rights Act and the Americans with Disabilities Act.

The litigation comes as other localities, including New York City, issue their own return-to-office orders for municipal employees. GOP lawmakers in Wisconsin also backed a bill that would have required Gov. Tony Evers (D) to submit a plan requiring state employees to go back to the office. Evers vetoed that bill, arguing it exceeded his authority to administer and oversee employment policy. …

Some attorneys and academics said the ACLU faces an uphill battle with its South Carolina challenge. However, they added that the public-sector case raises overarching return-to-work issues that must be taken into account by private businesses eager to move away from the mass telework arrangements necessitated by the Covid-19 pandemic. …

Return to Office

Outside of the public employer sphere, many private businesses that have successfully transitioned to remote work in the past year are re-thinking the future of a fully in-person workforce.

This is true even for employers that have historically prohibited remote work, said Nancy Gunzenhauser Popper, an Epstein Becker Green P.C. attorney in New York who represents employers.

“For those employers that are bringing their workforce back to the office full-time, we’re seeing many requests for continued remote work as an accommodation—either for a disability or for family care responsibilities,” Popper said.

She noted that the law does typically require an accommodation for those with disabilities, but not necessarily for people without disabilities who have taken on caregiving responsibilities during the pandemic. She said other businesses are ready to have workers back in person and must navigate the required interactive process for accommodations.