EPA Faces Lawsuit over Remote-Work Policy

​A union of federal employees has sued the Environmental Protection Agency (EPA) in an effort to show that the EPA applied its remote-work policy unfairly and unevenly.

On Oct. 20, the American Federation of Government Employees Local 704 filed a lawsuit in the U.S. District Court for the District of Columbia, alleging the EPA violated the federal Freedom of Information Act (FOIA) by not releasing documents related to the telework policy.

On May 6, the union requested information on which management employees were approved to work from home in 2022.

It also sought a copy of a 2019 telework policy issued by the EPA's Air and Radiation Division, which was cited when an employee's request to telework was denied. The EPA released some of the documents requested but not all of them, according to the lawsuit.

The EPA "is frustrating [the union's] efforts to adequately advocate for and educate its members regarding the EPA's telework policies and their potentially unequal application to different employees," the lawsuit stated. The EPA declined to comment on the allegations.

FOIA requires federal agencies to respond to public requests for records, including electronic files, to increase public understanding of government operations and provide access to government information.

Consistency Is Best Practice

"When employers fail to apply their policies in a fair, consistent or even-handed manner, they often face an increased risk of employee-driven legal action and potential liability," said H. Scott Johnson Jr., an attorney with Feldesman Tucker Leifer Fidell in Washington, D.C. "This is particularly true with federal employment laws, such as Title VII [of the Civil Rights Act of 1964], where issues may arise from policies that have a disparate impact on the workforce. Furthermore, employers that implement policies that are viewed as unfair by their employees also tend to dampen morale, increase turnover and reduce efficiency. Although these costs may not be as publicized as employee lawsuits, they nonetheless have an adverse impact on the businesses' bottom line."

Unionized employers "should be cognizant of applying all policies, including remote-work policies, in a consistent manner," said Thomas Payne, an attorney with Barnes & Thornburg in Indianapolis. "Where disputes arise under the policy, unionized employers will likely need to work with the union representative, either informally or through a contractually mandated grievance procedure, to resolve those disputes."

"A telework or remote-work policy would be a condition of employment that ordinarily would require bargaining. This means that a unionized employer would need to bargain before implementing such a policy," he added. "Unionized employers would also have an obligation to bargain with their union over changes to the policy and actions taken under the policy."

The COVID-19 pandemic caused some employers to quickly implement telework policies without much planning.

Employers "should understand that any perceived benefit they may have with respect to implementing remote-work policies without union buy-in probably isn't worth the potential legal implications and long-term costs that may arise with remote-work policies that are patently unfair or applied in an unfair manner," Johnson noted.

ADA Requirement

In general, employers are not obligated to let employees telework. However, the legal requirements are different if a worker has a disability and asks to work from home.

The federal Americans with Disabilities Act (ADA) "requires employers to make reasonable accommodations to disabled employees," said Scott Unger, an attorney with Stark & Stark in Princeton, N.J. "As a result of the pandemic, employers adopted remote-work policies to continue doing business. Hence, it is likely more reasonable for employers to offer remote work to disabled employees who need that accommodation. The key term is reasonable. If the job requires someone to be onsite to do their job, then it would not be reasonable to work from home."  

The U.S. Equal Employment Opportunity Commission has issued guidance on telework as a disability accommodation.

More Lawsuits Expected

Recently, there's been more litigation over remote work policies "likely because more employees are working remotely in the past three years than before," Payne noted. It's "often disability discrimination cases involving requests to work remotely as an accommodation. For unionized employers, the number of grievances related to remote-work policies has also likely increased, though tracking that information is more difficult, as it often does not end up in public courts."

"I believe we are at the very infant stages of these lawsuits, and in the next two or three years, we are going to see employees file these cases with increasing regularity in state and federal courts across the United States," Johnson said. "The sudden and pervasive manner in which the concept of remote work became a mainstay in the employment relationship deprived employers of the opportunity to deliberately and prudently institute remote-work policies in a systematic fashion. … As a practical matter, this makes for a fertile environment for unlawful action and employee discontent."