Since the pandemic, working from home has become more common, and a recent lawsuit, as Medscape reported Sept. 19, raises the question, do physicians have the right to work from home?
Richard Heiden, MD, sued New York City Health and Hospitals Corporation in 2020 claiming discrimination and retaliation violations under the Americans with Disabilities Act after his request to work from home was denied. Dr. Heiden, who is a radiologist with ulcerative colitis, asked to work off-site in March 2020, arguing he was at high-risk for COVID-19, according to court documents. He said that except for fluoroscopy, his job could be done entirely from his home. The hospital denied his request for accommodation and later, administrators accused him of poor performance and requested he resign or he would be terminated, the lawsuit said. Hospital attorneys said Dr. Heiden was already undergoing a performance review at the time of his accommodation request and his departure was not related to the request.
Both parties settled after a three-year legal battle.
Working from home has not historically been considered a "reasonable accommodation" under ADA; however, that appears to be changing following the pandemic. According to a Bloomberg Law analysis, employees who made disability-related remote work requests won 40 percent of federal court rulings from 2021 to 2023, a 10 percent increase from 2017 to 2019.
"There is now a precedent and examples all over that working from home for some is a viable alternative to working in the hospital or a clinic," Peter Poullos, MD, clinical associate professor of radiology, gastroenterology and hepatology at Stanford (Calif.) University and founder and co-chair of the Stanford Medicine Alliance for Disability Inclusion and Equity, told Medscape. "If a lawyer can point to instances of other people having received the same accommodation, even if the accommodation was given to someone without a disability, it's much harder for an employer to say, 'It's not possible.' Because clearly, it is."
A common misconception is that only people with physical disabilities are considered "disabled," but under ADA law, a disabled individual is anyone with a physical or mental impairment that limits major life activities. Mental impairments can include mental illness, Doron Dorfman, an associate professor at Seton Hall University Law School in Newark, N.J., who focuses on disability law, told Medscape.
The key factor is the employee's job duties and whether they can be performed remotely. With physicians, the reasonableness of the accommodation depends on their specialty. In general, determining if an accommodation is reasonable is decided on a case-by-case basis and employers can deny accommodations if they would cause undue burden or alter the nature of the job.
Experts said that physicians should ensure to say words like "disability" and "accommodation" when talking to supervisors about their needs.
"The employee might say, 'I've been dealing with some medical issues and I'm really tired and need to adjust my schedule,'" Dr. Poullos said. "They don't mention the word 'disability,' they don't mention the ADA, they don't mention the word 'accommodation,' and so that might not trigger the appropriate response."
If the accommodation is denied, physicians are encouraged to follow the appeals process. Research shows physicians rarely escalate denials to an appeal, grievance or complaint, the report said.