employment law

This is a freelance piece I recently wrote for the Rochestser Business Journal:

As much of the working world embraces working from home due to COVID-19, Marisa Zeppieri says she feels a little bit of betrayal that previously many employers refused to provide that accommodation to people with disabilities or chronic illnesses.

“It’s archaic thinking that all positions happen in this 9 to 5 structure,” says Zeppieri, an author, speaker and founder of the LupusChick nonprofit providing support to other people with Lupus.

“You have many people with chronic illnesses or disabilities who are talented but there is no physical way that they can come into office 100 percent of the time, 9 to 5,” Zeppieri says. “With COVID, for me, the whole thing has been bittersweet. In one sense, I am really excited about these great changes that will hopefully impact people who are disabled and chronically ill. You also get a little hint of betrayal when you’re told so often that positions available in your line of work have to be 100 percent in the office but then you see” how employers migrated their workforce to work from home in just a few days due to COVID-9.

Zeppieri says that the number of positions that are now available remotely compared to a year ago are “unbelievable,” and she foresees a lot more opportunity for people who are disabled, chronically ill or have other reasons to work from home.

“If you are disabled or chronically ill you have to ask yourself was it just they didn’t want to go the extra mile” when these kinds of flexible work options weren’t as widely available before, Zeppieri adds.

Calvin Eaton, the founder of 540WMain, a community-based organization that promotes justice for all and who has fibromyalgia, says he does feel optimistic that people with disabilities and chronic illnesses will benefit from a shift in workplace culture that finds that having people work from home is working out fine.

“I do think that there is a lot of ableism that goes on professionally,” Eaton says. “I am happy that tone is changing. The fact it took a pandemic to force us to have real conversations about this speaks to the barriers to how much further we have to go in this culture to see disabled individuals as whole people who bring value and experience.”

Jeiri Flores, a local disability rights advocate who works for an area university, says that being able to work from home every day has had several benefits for her disability.

Flores, who uses a power chair to get around, says that there are multiple reasons that being able to work from home has improved her life.

“During this COVID time it has really canceled out a lot of issues I have had navigating my workday,” Flores says.

Wintertime is the “prison season” for her, Flores says, because she can’t guarantee that her home and her workplace entrances will be adequately shoveled for her to be able get in and out.

Flores also says that she is at greater risk of contracting COVID-19 and it’s important to be able to work from home at this time to protect her health.

Flores also says that transportation for many people with disabilities is an issue because there is limited public transportation in the Rochester area and she has to pay for someone to drive her to and from work because she does not drive. Working from home and meeting with people over Zoom also has been a relief because she is not having to travel to multiple meetings at different sites during the day and paying a great expense to do so, she adds.

“Everything for people with disabilities is super expensive,” Flores says. “It’s called the disability tax.”

Flores said that she also thinks she works harder from home than she ever has in the office.

Allowing employees to work from home and to work feasible schedules has shown employers that employees with disabilities and chronic illnesses “are still able to be vibrant and efficient members of their workforce,” Flores says.

Some employees had “already decided and deemed what people with disabilities can do,” Flores says. “You wouldn’t allow me to have this accommodation because you couldn’t see what I could bring to your company. Now that it is your only solution, now that you see (working from home) in a whole new light, you’re impressed and think that this can be your new norm.”

Flores notes that opening up work-from-home options and flexible hours will change the opportunities for people with disabilities to become employed. She notes that many people with disabilities are living off disability payments, which typically only pay $800 or $900 a month.

“It’s really about leadership pushing themselves to think outside of the box,” Flores says. “It’s about pushing the envelope on what traditional work looks like.”

Luke Wright, a partner at Harter Secrest & Emery who practices in the area of labor and employment, says that “sometimes employers would look at requests to work from home skeptically. There may have been some skepticism about productivity and employers thought some of the essential functions of the job need to be in person. A lot of employers have been surprised how easy the transition has worked and how many employees are able to maintain productivity without physically being in the office and how alternatives have been found for many of the functions thought to be essential.”

Wright also notes that the increased openness to have employees work from home or have flexible hours also may benefit people who want to work from home due to their family situation or their caregiving responsibilities.

Eaton says that opening up workplace culture to allow working from home on a regular basis and allowing for flexible hours is not just about diversity and inclusion but a matter of equity and justice.

“When organizations are starting to really look internally and say, ‘What are our values? Who are we excluding?’ Sometimes the way you’re being as an organization can be so one dimensional and you’re in tunnel vision,” Eaton says. “The disability community has huge spending power. When you look at it across sectors, genders, races there are people who are not part of the conversation until they need to be. If these folks were included at the table, reached out to, we know it will behoove these organization to tap into that sector. They will buy the product. They will buy the service. They will support the organization.”

Amaris Elliott-Engel is a Rochester-area freelance writer.

How do you overcome the ax murderer taking care of Grandma problem?

Lawyer Peter H. “Tad” LeVan knows a thing or two about that.

A few weeks ago, the Pennsylvania Commonwealth Court, sitting en banc, ruled that the state's ban on former convicts working in elder care was unconstitutional.

LeVan gave me a recent interview about this litigation. It started with a challenge to the law's constitutionality on an individual basis; the Pennsylvania Supreme Court ruled that the law’s “employment ban was not rationally related to the Commonwealth’s legitimate interest in protection elderly citizens.” LeVan won that case in 2003. But then the Pennsylvania General Assembly never moved to amend the law after the court’s ruling.

So, in the spring of 2015, Levan, his co-counsel and his clients challenged the law on its face as unconstitutional.

It's always easier to attack the constitutionality of law by arguing that it’s unconstitutional “as applied” to particular plaintiffs, than arguing that the law is unconstitutional for everyone on its face.

The Pennsylvania Older Adults Protective Services Act was passed in the 1990s to create a lifetime ban on employment for convicted murderers and rapists in healthcare facilities; people convicted of felony drug violations and several other crimes were banned for a decade from working in healthcare facilities. The law, which was amended in 1997, required anyone who had been working at an eldercare facility for a year or less to be fired. However, people who had been working for a year or more could keep on working for their present employer.

By 2015, the social science had developed enough on reintegration and recidivism to support a challenge that the ban on people with criminal convictions working in elder care had zero “scope of rationality,” LeVan said.

“Social science research conducted subsequent to the [prior case] shows that the lifetime employment ban is built on a faulty premise because the risk of recidivism declines over time and eventually ‘loses any meaningful value in predicting future criminal conduct,’” Judge Mary Hannah Leavitt wrote for the Commonwealth Court.

The court ruled that the employment ban violates the Pennsylvania Constitution.

“There is simply no rational basis to treat those employed for a year in a facility providing services to older adults as of July 1, 1998, as having rehabilitated themselves following their criminal convictions solely because of the amount of time they worked in one facility such that they do not pose a threat to older adults, but treat all other employees and applications as incapable of rehabilitation and forever a threat to adults,” Leavitt opined.

The two sides also disagreed on the correct standard for considering the plaintiffs’ challenge to the constitutionality of the employment ban.

Lawyers for the Commonwealth of Pennsylvania argued that a law can be declared facially unconstitutional only if there is no set of circumstances under which the statute would be valid. LeVan argued on behalf of his clients that a statute is facially unconstitutional if a substantial number of its potential applications are unconstitutional.

The Commonwealth Court followed the U.S. Supreme Court’s ruling in Washington State Grange v. Washington State in State Republican Party in deciding that challengers who argue that a law is unconstitutional on its face need only demonstrate that a substantial number of the “‘challenged statute’s potential applications are unconstitutional.’”