Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
Speaker 1: The European Union has been in a legal fight with
Speaker 1: renegades Poland and Hungary over respect for the rule of
Speaker 1: law and the independence of the judiciary. The two countries
Speaker 1: were singled out in an EU report this week that
Speaker 1: pointed to the widening gap between their populist regimes and
Speaker 1: the block's democratic standards. Poland Supreme Court is considering making
Speaker 1: a U turn and halting a controversial disciplinary regime for
Speaker 1: judges that would comply with the ruling by the EU's
Speaker 1: top tribunal, But the Prime Minister of Hungary is proposing
Speaker 1: a referendum to push back against EU pressure to change
Speaker 1: a Hungarian anti lgbt Q law that sparked a furious
Speaker 1: reaction in the Block. Will the EU's executive arms start
Speaker 1: using recently one sanctioning powers to freeze funding including COVID
Speaker 1: nineteen bailouts for the errant member states? Joining me is
Speaker 1: Ronan McCrae, Professor of Constitutional and European Law at University
Speaker 1: College London. So let's start with some basics. In the
Speaker 1: United States, we have federal law and state law. How
Speaker 1: does EU law work with the law of country members.
Speaker 1: In some ways, it's actually not that different from the
Speaker 1: situation in the US. So like in the US the preemption,
Speaker 1: when the EU legislates in a particular area, the member
Speaker 1: states lose their right to legislate in that area, and
Speaker 1: EU law takes precedents. So under EU laws there's a
Speaker 1: clash between national law and ELA. E law takes precedence,
Speaker 1: and EULO will also be enforced by domestic courts, so
Speaker 1: you don't have to go to the European Court for
Speaker 1: every case. In theory, your local court will enforce your
Speaker 1: EU law rights. In the United States, we have common
Speaker 1: law and then we have statutory law. Is EU law
Speaker 1: all statutory no, so the law it's really like a
Speaker 1: constitutional system. So there's the Treaty, which is the founding
Speaker 1: documents that's like the constitution that sets out the powers
Speaker 1: of the EU, but also has a lot of constitutional principles,
Speaker 1: mainly fundamental rights principles in it. And then there's also
Speaker 1: then the secondary legislation that's produced by the EU legislature,
Speaker 1: which is the States and European Parliament and the European
Speaker 1: Commission together produce legislation in various areas of law in
Speaker 1: which the EU has competence. So then if a country's law,
Speaker 1: let's say Italy, if Italy's laws conflict with EU laws,
Speaker 1: then Italy has to change their laws. Yes, there's two
Speaker 1: things that can happen. First, the Commission can take Italy
Speaker 1: to the European Court of Justice and get the declaration
Speaker 1: that they've violated their duties under EU law. And if
Speaker 1: Italy doesn't bring its law into line, they can then
Speaker 1: be subject to repeat unlimited fine from the court. The
Speaker 1: second way, and in ways the more important a is
Speaker 1: that an Italian individual can go to their local court,
Speaker 1: they have a case and insist that eulaways applied in
Speaker 1: that case. And the Court of Justice has for a
Speaker 1: really forty years, the Court of European Court of Justice,
Speaker 1: the Supreme Court has ruled that in the case where
Speaker 1: there's a conflict between national law and EU law, EU
Speaker 1: law must take precedence and in the individual local national
Speaker 1: judge must apply EU law to the case. That's what
Speaker 1: makes the law so different from other forms of international law.
Speaker 1: You don't have to go to the international court. It's
Speaker 1: directly enforceable in your local court. How many EU courts
Speaker 1: are there well, that's a good questions. So there are
Speaker 1: two main EU courts to the General Court, which deals
Speaker 1: with issues about kind of when you call antitrust law,
Speaker 1: bearious other areas, and then there it's decisions can be
Speaker 1: appealed to the European Court of Justice, which is the
Speaker 1: supreme court. But because the European Court of Justice has
Speaker 1: ruled that national courts have to enforce the law in
Speaker 1: cases before them, in theory, all of the courts of
Speaker 1: the Member States are also EU courts. And what happens
Speaker 1: is the Court of Justice says that any national court
Speaker 1: that has issue of EU law before it and doesn't
Speaker 1: know how to interpret you law in the case, they
Speaker 1: can stop the case, make a reference to the European
Speaker 1: Court ask how should I apply EU law in this case,
Speaker 1: and the court will give them the answer and then
Speaker 1: they'll apply it. So there isn't a separate system of
Speaker 1: federal and state courts like you have in the US,
Speaker 1: just all the Member states have their own legal systems.
Speaker 1: And then there's on top of it at the European
Speaker 1: Court of Justice, who answers all EU law queries, but
Speaker 1: which expect the Member of state courts then to apply
Speaker 1: its rulings. When is it that the courts enforce laws
Speaker 1: and when is it that the European Commission enforces laws?
Speaker 1: So the courts will enforce the law in a concrete
Speaker 1: case before it. So what happens is you know you
Speaker 1: might be fired from your of work and you think
Speaker 1: that there's a lot of the laws, a lot of
Speaker 1: competence in labor law. You may take the case to
Speaker 1: the court and insist that the law is applied in
Speaker 1: that case. What the European Commission can do is where
Speaker 1: there's no case just in period as a breach of
Speaker 1: the EU law, they can they can then take a complaint.
Speaker 1: So for the Commission to act, they don't need a
Speaker 1: concrete violation in an individual case, they can follow up
Speaker 1: any abstract one. But for national courts they would need
Speaker 1: an actual dispute in front of it. And the Court
Speaker 1: of Justice is rude, but they they won't rule on
Speaker 1: theoretical disputes, and national courts they have an actual dispute
Speaker 1: involving in the EU law issue before it before the
Speaker 1: national court can invoke EU law. So tell me what
Speaker 1: happened last year when the e use General Court ordered
Speaker 1: the annoyment of the thirteen billion euro tax order against Apple.
Speaker 1: Why did that happen? Well, what they found was because
Speaker 1: the EU has quite limited competence in matters of tax,
Speaker 1: but they do have a lot of power in areas
Speaker 1: could of what's called state aid, which is where states
Speaker 1: giving subsidies two companies, and the European Commission had argued
Speaker 1: that Irelen's favorable treatment of Apple in relation to tax
Speaker 1: matters was so favorable that it effects the amounted to
Speaker 1: a subsidy state subsidy. And so because EU look Bay
Speaker 1: prohibits state subsidies, the European Commission imposed that fine and says,
Speaker 1: you can't do this. Apple has to pay back the
Speaker 1: tax is amounts to a subsidy. But the general courts
Speaker 1: that actually, no, this is a matter of tax, not
Speaker 1: a matter of subsidy policy, and so they annulled the
Speaker 1: imposition of that thirteen billion. So tell me how Germany's
Speaker 1: Constitutional Court took the EU Court of Justice on in
Speaker 1: and what happened there. As part of the kind of
Speaker 1: economic crisis, the European Bank is not allowed to fund
Speaker 1: to give money to states to kind of fund their spending,
Speaker 1: but it is allowed fixed interest rates, and the European
Speaker 1: Bank Central Bank. During the kind of economic crisis the
Speaker 1: last ten years, the bank bank has decided that although
Speaker 1: they're allowed directly financed governments, they can buy unlimited amounts
Speaker 1: of state debt in order to ensure that the interest
Speaker 1: rate states are charged is not doesn't deviate much from
Speaker 1: the interest rates set by the European Central Bank, and
Speaker 1: the German court says this is disguised financing of the
Speaker 1: states by the European Central Bank and that that's something
Speaker 1: that the EU Bank does not the power to do so.
Speaker 1: When Drum politicians took this case, saying the European Central Bank,
Speaker 1: by funding member states in this way buying their debt,
Speaker 1: has gone beyond its powers. The German Constitutional Court after
Speaker 1: the European Court of Justice, does the European Central Bank
Speaker 1: have the power to do this under the EU treaties.
Speaker 1: The Court of Justice said yes it does and send
Speaker 1: the case back to the Constitutional Court. But the German
Speaker 1: Constitutional Court said, actually, we don't think you've exercised a
Speaker 1: strict enough review of the limits of the powers of
Speaker 1: central bank. We disagree. Therefore, the German Central Bank, which
Speaker 1: is part of the European central bank system, and provide
Speaker 1: some of the money cannot participate in this project. Now,
Speaker 1: the issue with that is it was the first time
Speaker 1: that a national court had refused to accept the ruling
Speaker 1: of the European Court of Justice on what were the
Speaker 1: limits of the powers of the EU institution. European Court
Speaker 1: Justice has always said, if we have twenty seven states,
Speaker 1: we have to have one court, European put a justice
Speaker 1: which provides a definitive answer to what are the powers
Speaker 1: of the institutions. And here the German court was refusing
Speaker 1: to accept that, and that went against fifty years of
Speaker 1: e U k S law, where they've been saying any
Speaker 1: conflict in national law and EU law is resolved in
Speaker 1: favor of you law. This is a problem in itself
Speaker 1: because they were worried about the European Central Banks bomb
Speaker 1: buying program, but they've they've kind of faded recently. But
Speaker 1: it's a bigger structural issue because if national constitutional courts
Speaker 1: start refusing to accept the primacy of EU law, then
Speaker 1: the whole system, the illegal system, begins to fall apart.
Speaker 1: And that's particularly important because the EU is in the
Speaker 1: midst of and very heated clashes with two members states
Speaker 1: Hungry and Poland over the independence of their courts tell
Speaker 1: us about the conflicts between the EU and Hungary and Poland.
Speaker 1: So the Hungarian government and the Polish government have an
Speaker 1: act that a series of performs, the substance of which
Speaker 1: is to undermine the independence of the judiciary, and the
Speaker 1: European Court of Justice has issued several rulings saying because
Speaker 1: EU law requires national judges to implement the EU law,
Speaker 1: the EU requires the judges are independent, so they're able
Speaker 1: to enforce the EU law against the government. Therefore, your
Speaker 1: measures which under find the independence of the courts in
Speaker 1: Hungary in Poland violated U law and you have to
Speaker 1: you have to disapply them. Now, this means when the
Speaker 1: German Constitutional Court is kind of reasonably why you respected
Speaker 1: in Europe, ruled that it was not accepting a Court
Speaker 1: of Justice ruling. The Polish and Hungarian governments were delighted
Speaker 1: because they were like brilliant. Our courts now will say
Speaker 1: they don't have to accept Court of Justice rulings in
Speaker 1: relation toudicial independence, which is what happens. Last week. The
Speaker 1: Polish Supreme Court or Constitutional Court has rules that it
Speaker 1: does not accept the European Court of Justice ruling which
Speaker 1: said that the Disciplinary Chamber they have for judges, where
Speaker 1: government appointees can discipline judges for ruling against it. European
Speaker 1: Court of Justice has said that disciplinary chamber is against
Speaker 1: the EU law and must be shut down, and Polish
Speaker 1: Constitutional Court has now said, well, just like the Germans,
Speaker 1: we retained the right not to accept Court of Justice
Speaker 1: rulings if we think they go against our constitution and
Speaker 1: therefore we don't accept this ruling. So this is a big, big,
Speaker 1: kind of slow burned threat to the European Court adjustice
Speaker 1: because over the years there's been some gray areas about
Speaker 1: whether their national courts accepted that EULA always took primacy,
Speaker 1: but by and large they have accepted the primacy of
Speaker 1: the law, and without the primacy of you law. If
Speaker 1: national courts are not going to follow you law and
Speaker 1: are going to disapply it when they feel like it,
Speaker 1: or if they think they're sufficiently important reasons to do so,
Speaker 1: then the legal unity of the EU is really undermined.
Speaker 1: The EU of two things. It's a sit on political
Speaker 1: cooperation between member states and the system of shared legal rules.
Speaker 1: Once the shared legal rules go, if national courts stopped
Speaker 1: enforcing them, then the EU retreats doing something much more
Speaker 1: like a classic international organization rather than what it is now,
Speaker 1: which is something which is halfway between a state and
Speaker 1: an international organization. So where does the situation now with
Speaker 1: the German Constitution Court. Well, the German Constitutional Court gave
Speaker 1: itself a kind of way out. It said that, well,
Speaker 1: we don't accept that the European Court of Justice has
Speaker 1: been strict enough than policing the boundaries of the powers
Speaker 1: of European Central Bank. But if the German Bank can
Speaker 1: provide us with various factual information about how this bond
Speaker 1: buying program works, then we might be happy to accept
Speaker 1: that it's within the powers of the European Central Bank.
Speaker 1: And the europ German Central Bank did issue various clarifications
Speaker 1: and gave the courts and factor information and the Court
Speaker 1: has said okay, well now Germany can participate. So on
Speaker 1: the fact the kind of danger to the bond buying
Speaker 1: program has disappeared. But that level of principles, the damage
Speaker 1: is done because now the threat to the authority of
Speaker 1: the European Court of Justice is established when a well
Speaker 1: respected founding Member States Supreme Court goes against the Court
Speaker 1: of Justice. Because remember there's no national Guard in the EU.
Speaker 1: You know when the European Court of just just rules
Speaker 1: while their case is clear that the legal obligation to
Speaker 1: enforce their ruling, they have no way of forcing a
Speaker 1: national court that doesn't want to enforce a ruling to
Speaker 1: do so. The only thing that can happen is they
Speaker 1: can impose financial sanctions on the member states, and they
Speaker 1: are now. The European Commission this week has said that
Speaker 1: they're going to go for financial sanctions against Poland. But
Speaker 1: there is no national guard. There's no way that the
Speaker 1: European Court of Justice can enforce compliance with rulings. It's
Speaker 1: dependent on the cooperation of national courts. So then if
Speaker 1: Poland or Hungary says we're not going to pay the sanctions,
Speaker 1: nothing can be done. Can they be kicked out of
Speaker 1: the EU? No? Well, so they can. This natural sanctions
Speaker 1: are real, and not least because Pope. Both Poland and
Speaker 1: Hungary receive very significant substitutes in the EU. So the
Speaker 1: EU is lucky and that the two countries that are
Speaker 1: kind of creating the most trouble at the moment are
Speaker 1: both big net beneficiaries of EU spending, so that they
Speaker 1: will have to pay the fine. There is new EU
Speaker 1: legislation says when judicial independence is not respected, if that
Speaker 1: threatens the integrity of the EU budget, you can cut funding.
Speaker 1: So they may lose funding, but there is no way
Speaker 1: to expel a member states from the European Union. In fact,
Speaker 1: in that regards to the unhelpful case came up during
Speaker 1: the Brexit process where some pro EU British politicians took
Speaker 1: a case to the European Court of Justice asking if
Speaker 1: Britain could withdraw its notification that it wants to leave
Speaker 1: the EU, and in a wider ruling in passing, the
Speaker 1: court said, well, there's no there's no mechanism for kicking
Speaker 1: a member state out of the European Union against its will,
Speaker 1: so you can't kick them out of the European Union.
Speaker 1: The one thing that can happen is, I mean the
Speaker 1: EU because it legislates in so many areas now labor, loan,
Speaker 1: by mental law, agriculture, economic policy. You know, there's an
Speaker 1: awful lot of ways in which member states can make
Speaker 1: other member states lives uncomfortable. So over the next few
Speaker 1: months will be hundreds of issues that the E will
Speaker 1: be deciding on. If put in the home, we really
Speaker 1: look like they're kind of in danger of bringing down
Speaker 1: the whole system. The other member states can extract long
Speaker 1: low revenge by blocking every single initiative that's important to them.
Speaker 1: So that is a possibility. It's not a very dramatic one,
Speaker 1: but member states are aware that there is long term
Speaker 1: cost for going against but the member states. And the
Speaker 1: one thing we learned from the Brexit process was how
Speaker 1: much the Union means to the political elites in Europe.
Speaker 1: In fact, we saw this again the financial crisis to
Speaker 1: there are a lot of commentators in the US like
Speaker 1: Paul Krugman and Just Stiglets who are wondering why the
Speaker 1: Eurozone didn't collapse. You know, the order doesn't really make
Speaker 1: sense to have a single currency without a single economic policy.
Speaker 1: But what they underestimated is the political commitment of EU
Speaker 1: leaders to maintaining the union. They would do whatever it
Speaker 1: takes to keep it together. And in the Brexit process,
Speaker 1: despite all the fights between different member states, when one
Speaker 1: member state left, the other twenty seven member states formed
Speaker 1: kind of a block and negotiating there was no deviation.
Speaker 1: There was no picking one member state off by the British.
Speaker 1: So you member state governments are very committed to protecting
Speaker 1: the union. There will be a high political price for
Speaker 1: Poland and Hungry to pay if they're seen is threatening it,
Speaker 1: but there is no way of expelling them even if
Speaker 1: they reach YOU law. What may happen if courts may
Speaker 1: start national courts may start saying that they don't recognize
Speaker 1: Polish and Hungarian decisions. So a lot of you law
Speaker 1: is the duty to recognize the judgments and decisions of
Speaker 1: other member states. And what may happen is over time
Speaker 1: other courts may start saying, well, actually, we don't think
Speaker 1: your courts are independents, so we won't give you that benefit.
Speaker 1: It's already in the case of Ireland years ago, where
Speaker 1: a Polish prisoner EU law makes the transfer prisoners between
Speaker 1: states much easier. A Polish prisoner was meant to be
Speaker 1: sent for trial in Poland, the Irish court said, we're
Speaker 1: not sure we can send you actually, because we don't
Speaker 1: think the Polish courts are independent. And tell us a
Speaker 1: little about the conflict with Hungary and it's LGBT law.
Speaker 1: The Hungarian government has really for the last ten years
Speaker 1: being undermining judicial independence. They've placed the wife of a
Speaker 1: rooting party politician as head of the judiciary. They gave
Speaker 1: her the power to promote and fire judges allocate cases.
Speaker 1: I think variously they've suddenly dropped the retirement age of
Speaker 1: judges by ten years to get rid of once they
Speaker 1: didn't like. So they've been attacking the independence of judiciary
Speaker 1: in Hungary for a while. But there's also been a
Speaker 1: cultural clash, and recently they passed the law that would
Speaker 1: be abandoned the provision of any information about gay more
Speaker 1: transgender people to people under eighteen and links it by
Speaker 1: implication to be the fedia that hast gone down very
Speaker 1: poorly in Western European states and in the Baltic states.
Speaker 1: So there's a real divide on this issue, and the
Speaker 1: European Commission is trying to sue Hungry for that. The
Speaker 1: difficulty they face is, you know, the European Union only
Speaker 1: has competence in certain areas, and that kind of area
Speaker 1: is something that the EU have fairly limited competence in
Speaker 1: relation to. But they're trying to think creatively about areas
Speaker 1: which might be touched by this law, like some elements
Speaker 1: of broadcasting law or things like that, where the Union
Speaker 1: does have competence and there they're going to try and
Speaker 1: take a case on that basis. So interesting. Thanks for
Speaker 1: being on Bloomberg Law. Ronan. That's Ronan McCrae, a professor
Speaker 1: of Constitutional and European law at University College London. The
Speaker 1: pandemics test of telework for office workers has reached an
Speaker 1: inflection point as returned to work mandates are put in
Speaker 1: place and legal battles loom over employee request to stay
Speaker 1: at home. Joining me is Aaron mulvaney, Senior legal reporter
Speaker 1: at Bloomberg Law. Are a lot of companies mandating that
Speaker 1: workers returned to the office or is there a split
Speaker 1: among major companies? There absolutely are a lot of companies
Speaker 1: that do you want a returned to the office UM
Speaker 1: for their workforce? UM, while they're being cautious, there's been
Speaker 1: a there have been CEOs that have come out like
Speaker 1: JP Morgan or UM Microsoft CEOs that have said office
Speaker 1: culture is very important to how they operate and UM.
Speaker 1: Then there have been other companies that have been more
Speaker 1: flexible and our suggesting permit hybrid options. And there are
Speaker 1: really big names in that group to like Twitter, Facebook,
Speaker 1: City Group, UM have considered kind of more flexible options
Speaker 1: as well. So there's definitely a divide among even major
Speaker 1: corporations of how they're responding to kind of this new
Speaker 1: normal which workers have to go back to work, have
Speaker 1: no excuse, and which workers can make a legal case
Speaker 1: right and and to be clear, since you brought this up,
Speaker 1: we're of course talking about office workers who were kind
Speaker 1: of teleworking during the whole the entire pandemic. And the
Speaker 1: reason that's been important is because of course there's a
Speaker 1: lot of workers out there that you know, we're essential
Speaker 1: and needed to go in and there was a business
Speaker 1: necessity to being actually in person, and so there is
Speaker 1: a case to be made. So by and large, an
Speaker 1: employer can fire anyone who doesn't follow a return to
Speaker 1: office handate. Most private employers have that right, um. But
Speaker 1: there are exceptions to that because there are protections under
Speaker 1: the American Disabilities Act, and if you that's probably the
Speaker 1: most powerful one. Um. If there is a legitimate reason
Speaker 1: and a concern that a person with a disability can't
Speaker 1: return to an office, there could potentially be an accommodation
Speaker 1: that's made, and there's kind of a balancing test that
Speaker 1: comes into play if that makes it up to the court.
Speaker 1: The first thing that happens is the worker says, I
Speaker 1: don't want to go back to work because or I
Speaker 1: can't go back to work because and is there an
Speaker 1: internal process first? Absolutely, So the way it would work
Speaker 1: is that if there's a mandate to return to the office,
Speaker 1: there could be and really this is for any kind
Speaker 1: of accommodation, like even if you want a more ergonomic desk,
Speaker 1: like the entire interactive process happened UM first with your
Speaker 1: company doesn't always go immediately to the court obviously, but
Speaker 1: so this would be a pretty big request or request
Speaker 1: for telework UM when everyone else is going back. UM
Speaker 1: would be something that you first from to your company
Speaker 1: and then they would go through an interactive process to
Speaker 1: see if that's an accommodation they can make and if
Speaker 1: that would be appropriate UM and not be an undue
Speaker 1: burden on their business operations. What kind of workers have
Speaker 1: brought lawsuits? A lot of these cases that do rise
Speaker 1: to the level of courts. Of course that you know
Speaker 1: a little early in the process, but we are already
Speaker 1: seeing lawsuits in charges filed UM arguing that the company
Speaker 1: should have granted a telework request. There are different categories
Speaker 1: of them. You know. Initially when there were kind of
Speaker 1: mandates to return to the office, some people were concerned
Speaker 1: with the immediate if they had UM, say asthma or
Speaker 1: a disease, that would made them more AMUNO compromised and
Speaker 1: more vulnerable to the actual coronavirus, you know, fearing going
Speaker 1: back while the virus is still very active and raging
Speaker 1: and before vaccines were widely available. UM. And then there's
Speaker 1: there's also the types of UM lawsuits were where people
Speaker 1: say that you know, the pandemic exacerbated their mental health
Speaker 1: and going into an office would increase the anxiety and
Speaker 1: that capacity. UM. There are absolutely those cases as well.
Speaker 1: And there's the other type of case where UM, somebody
Speaker 1: might have difficulty coming to the office because of a
Speaker 1: mobility issue or the like, and that would be something
Speaker 1: they could request and say it would just be I
Speaker 1: can work just as well from home because I've proven,
Speaker 1: you know, our whole office proven proved that we can,
Speaker 1: and trying to make that request so there, and that
Speaker 1: would be something that might happen more in perpecuity potentially, UM.
Speaker 1: I take it the request due to physical disability is
Speaker 1: easier to prove than the request due to mental health disability.
Speaker 1: I think typically a doctor would be involved in giving
Speaker 1: the information, you know, providing a note or you know,
Speaker 1: a recommendation for what would be an appropriate accommodation for
Speaker 1: somebody with stahts D or an anxiety disorder or depression.
Speaker 1: So it would be similar. And I think it's always
Speaker 1: about the remedy. You know, what is the remedy for
Speaker 1: making you more comfortable at work? Like what can the
Speaker 1: employer do? They could come back and say, Okay, you
Speaker 1: don't want to be around people, will give you your
Speaker 1: own office away from people, as opposed to having you
Speaker 1: telework with people with mobility issues, the issue might be
Speaker 1: the lack of public transportation available or the risk that
Speaker 1: there would be at this time maybe using those So
Speaker 1: they're the A D A cases always have this kind
Speaker 1: of interactive process where all these different factors are balanced,
Speaker 1: and then when we're talking about when they make it
Speaker 1: up to the court level, the court will weigh those
Speaker 1: factors as well and kind of try to determine what
Speaker 1: would be an undue burden on the company. Was there
Speaker 1: a decline in productivity during the work from home during
Speaker 1: the pandemic, A lot of companies still reported UM positive numbers,
Speaker 1: you know, and there was even a study that Price
Speaker 1: Waterhouse Coopers did that said productivity didn't see a decline
Speaker 1: during the pandemic. Office workers you know, effectively worked from
Speaker 1: home um. And I think there was kind of um
Speaker 1: for the pandemic that built in bias or fear um
Speaker 1: that people would slack off for be lazy if they're
Speaker 1: at home, like it's a day off. And so many
Speaker 1: office workers were forced all at once to work at home.
Speaker 1: It kind of automatically removed that stigma, at least potentially. UM.
Speaker 1: It is interesting though, because I think companies still hold
Speaker 1: on to and say despite that office culture is important,
Speaker 1: being around people is important. Our company is well on
Speaker 1: about personal relationships and we can't do that over zoom
Speaker 1: and so that's why it's kind of an interesting cultural
Speaker 1: class right now. UM. But you know there's when we
Speaker 1: when we talk about people with disabilities. Um, there's an
Speaker 1: extremely low employment rate um for people with disabilities, and
Speaker 1: some experts day that remote options and being like widely
Speaker 1: available could potentially help that down the line. And I
Speaker 1: suppose that now that workers can point to, look what
Speaker 1: I did during the pandemic, everything worked out fine, that
Speaker 1: that is you know, an added boost to their cases.
Speaker 1: I had a lawyer teld me that it's just you know,
Speaker 1: she doesn't know the full legal landscape yet. We'll see
Speaker 1: how these cases turn out and or but it'll be
Speaker 1: so much more challenging for an employer to show that
Speaker 1: working on site is an essential function of the job
Speaker 1: because that didn't happen for so many office workers for
Speaker 1: you know, more than a year UM, so that that
Speaker 1: could be a potential silver lining for you know, uh,
Speaker 1: either people have disabilities or even people with caregiving responsibilities,
Speaker 1: which you know, so it could be a bit of
Speaker 1: a silver lining from the pandemic for for certain groups
Speaker 1: that actually benefited from teleworking. Being a caregiver, that's not
Speaker 1: what I normally think about when I think about the
Speaker 1: Americans with Disabilities Act. Is there a provision for caregivers? No,
Speaker 1: that's kind of a can of worms. To be honest
Speaker 1: with you. What I would say about caregivers is we
Speaker 1: saw an unprecedented amount of women drop from the workforce,
Speaker 1: and many of them were mothers um according to you know,
Speaker 1: data from the pandemic, and I think that there will
Speaker 1: be consequences from that. And it's still really hard to
Speaker 1: actually make a claim UM for caregiver discrimination because that's
Speaker 1: not an inherently protected um characteristic at least under like
Speaker 1: the main federal civil rights laws like UM. I guess
Speaker 1: the closest claim would probably be something under Title seven
Speaker 1: if there was a sex discrimination claim UM. But but no, UM.
Speaker 1: Actually caregiving is not covered under the the A d A,
Speaker 1: even if there is a UM there. There was one
Speaker 1: case that I mean, it's also being debated in the
Speaker 1: courts about whether UM, you you have a claim for
Speaker 1: UM if you have an amino compromised person that is
Speaker 1: living in your house and you didn't want to see
Speaker 1: bringing the disease back to them. UM. And that's that's
Speaker 1: also a very unclear area of the law. UM. The
Speaker 1: the ADA doesn't explicitly protect UM people in your household
Speaker 1: that may have a disability. You write that before the
Speaker 1: COVID pandemic, employers generally one the majority of rulings about
Speaker 1: disability accommodations tell me about that and what may be
Speaker 1: shifting there, right, and so we don't. We do have
Speaker 1: some indication that it's a harder case for a company
Speaker 1: that employs a lot of office workers to make. But
Speaker 1: we we did see generally employers won these rulings because
Speaker 1: I think it was that idea that cords were really
Speaker 1: sympathetic to a company's argument that work needed to happen
Speaker 1: in person, even if it was office work and computers
Speaker 1: can be um. You know, the the e o C
Speaker 1: actually fought a case on that and they kind of
Speaker 1: had an opposite point of view or and we're trying
Speaker 1: to say that like telework should be considered, especially in
Speaker 1: these office environments, and they lost um because and you know,
Speaker 1: if you look at courts, they happened in person so often,
Speaker 1: and you know, and that obviously changed during the pandemic
Speaker 1: as well. So there's there's there's potential for a shift
Speaker 1: on on that question and how it will be interesting
Speaker 1: to see how courts respond to it. Um. There was
Speaker 1: a case that happened last fall and in a Massachusetts
Speaker 1: a Massachusetts federal court allowed and asthmatic workers telework accommodation
Speaker 1: to move forward um, you know, siding with the worker
Speaker 1: over the company. And a lot of attorneys were pointing
Speaker 1: to that case and saying that's an early indication that
Speaker 1: courts may be more sympathetic to those arguments. And you know,
Speaker 1: in that case, there was a worker who's feared going
Speaker 1: back into the office because it would she'd be vulnerable
Speaker 1: to the virus and courts. You know, a court I
Speaker 1: thought that was a reasonable request and she clearly proved
Speaker 1: that she could work from home for a year was
Speaker 1: something that was cited. That case did settle, so we
Speaker 1: didn't see it moving, you know, all the way through
Speaker 1: the process. But um, but yeah, it should be a
Speaker 1: really interesting shift right now. Tell me about Conrad Reynoldson.
Speaker 1: It's he's got an interesting case. Yeah. So Conrad Um
Speaker 1: is a disabilities rights attorney in Seattle and he um
Speaker 1: he is someone who has a disability and a mobility disability.
Speaker 1: And he actually said he really likes going into the
Speaker 1: office and he's really looking forward to the return um.
Speaker 1: And he said his staff wants to return Um. He
Speaker 1: currently can't for his health because he needs the US
Speaker 1: to reach a higher level of immunity according to his doctors,
Speaker 1: and he's currently allowing his staff to have the option.
Speaker 1: But he made a really interesting point. He said, you know,
Speaker 1: he was able to do a full argument before a
Speaker 1: federal appeals court um during the pandemic, and that I'm
Speaker 1: previously possible. And he said that right now, is the
Speaker 1: courts all shut off and refused to go remote, he
Speaker 1: wouldn't be able to really argue anymore. And she said,
Speaker 1: but that's clearly clearly the argument against being remote and
Speaker 1: being flexible in that way or being undermined. And he
Speaker 1: was kind of interesting because he was a person who said,
Speaker 1: I totally get it, I want to be in an office,
Speaker 1: but he's not the right time. UM. So I think
Speaker 1: I think he did have a really interesting point. And UM,
Speaker 1: it'll be interesting to see if how how things change
Speaker 1: moving forward. In the April hearing of the e o
Speaker 1: C on COVID discrimination issues, did anything come out at
Speaker 1: that hearing? That's that was you know important. At the
Speaker 1: April hearing, there were stakeholders, there were attorneys and experts, um,
Speaker 1: kind of talking about this clash that we're talking about
Speaker 1: right now, and UM, they definitely did focus a lot
Speaker 1: of the themes that we've been talking about today about
Speaker 1: the disabilities and the A d A and the legal
Speaker 1: cases that would come up moving forward, and what the
Speaker 1: pandemic would mean for the future of these civil rights
Speaker 1: UM cases and courts. UM. You know, we I there
Speaker 1: was an attorney who talked about what we were talking
Speaker 1: about about how sixty percent of the cases that he
Speaker 1: has coming in from the last year related to the pandemic,
Speaker 1: or about an employer rejecting telework accommodation. I think a
Speaker 1: lot of the attorneys on both sides were we're saying
Speaker 1: that there's kind of an inflection point right now for
Speaker 1: employers making these decisions, but what they're going to do
Speaker 1: for a return to office keeping all of the the
Speaker 1: civil rights issues in their minds moving forward? And UM,
Speaker 1: the e e O C S. You know, guidance has
Speaker 1: been slowly kind of evolving as the pandemic UM has
Speaker 1: has gone forward, and UM they've acknowledged that UM this
Speaker 1: time could serve as a trial period UM to show
Speaker 1: whether or not an employee the disability could perform all
Speaker 1: their essential functions while working remotely. UM, and employers should
Speaker 1: consider all new requests in light of disinformation. So it's,
Speaker 1: you know, it's somewhat vague what they're what they're recommending,
Speaker 1: and their guidance is only guidance, But a lot of
Speaker 1: employment attorneys pay really close attention to how the e
Speaker 1: O s UM advises on these issues. So UM, some
Speaker 1: of them even asked for clearer guidance and more definitive
Speaker 1: UM point of view. But UM, we'll see, you know,
Speaker 1: the EOC is also the one who can bring lawsuits,
Speaker 1: so I think that's one reason they pay attention to them.
Speaker 1: But guidance is just guidance um from from that agency.
Speaker 1: Thanks Sarah. That's Aaron mulvany of Bloomberg Law and that's
Speaker 1: it for the Bloomberg Law Show today. Remember you can
Speaker 1: always at the latest legal news on our Bloomberg Law Podcast.
Speaker 1: You can find them on Apple Podcasts, Spotify, and www
Speaker 1: dot Bloomberg dot com slash podcast Slash Law. I'm June Grasso.
Speaker 1: Thanks so much for listening, and please tune into The
Speaker 1: Bloomberg Law Show every weeknight at ten pm Eastern right
Speaker 1: here on Bloomberg Radio.