Is There an Individual Right to Remote Work? A Private Law Analysis

Introduction One of the many legal uncertainties of the COVID-19 pandemic is the status of remote work. Since the expiration of government shutdown orders, companies have been calling employees back to the office. An employee seeking remote work is effectively requesting an accommodation, much like what the Americans with Disabilities Act (ADA) guarantees disabled workers.10 Some employees might qualify for such protection, like those who have immune disorders or other impairments that make contracting COVID especially grave.11 But employees are not disabled due merely to age, nor are accommodations available to employees due to close contact with a disabled family member. [...]ADA-qualifying employees are not entitled to their preferred accommodation.12 A court could find that an employer's implementation of a lesser adjustment-such as providing a private office or reassigning the worker to a less contact-intensive shift-is a reasonable, and consequently sufficient, accommodation for the employee's disability. [...]the public law rights of at-will employees are limited. [...]the legal standard, particularly in implied contract cases, is highly deferential to employers.16 The viability of an ongoing work-from-home arrangement would likely be viewed as a matter of managerial discretion in the absence of any public mandate.17 Should the question prove a close one, the burden of proof lies with the employee to demonstrate breach of contract.18 B. Excuse of Performance As a practical matter, disputes over the termination of a written employment contract are assessed through the lens of cause.