NM state agencies denying telework as a disability accommodation
How the end of remote work for NM state workers is playing out
CWA Local 7076 Treasurer Anne Keller (left) wore a union jacket to the rally on Tuesday, Jan. 17, 2023, outside the Roundhouse as lawmakers gathered for the start of the legislative session. (Photo by Austin Fisher / Source NM)
Sylvia Burton thought she had more time.
When the pandemic reached New Mexico in March 2020, Burton, a financial specialist with 20 years of experience working for the New Mexico Environment Department, had to leave her middle cubicle surrounded by others in a large office suite in the Harold Runnels Building in Santa Fe.
Burton was happy to work from home at the onset of the pandemic. Her building had a reputation “of being a Petri dish in that area,” she said. And seasonal illness hit her annually.
“Every winter, I was sick all winter, like from October to May,” Burton said.
At the time, the New Mexico government issued a mandatory telework policy. If a state worker could telework, they were required to report from home until further notice.
Now, people like Burton are wondering why the New Mexico State Personnel Office notified them and their unions that the state government was rescinding a June 2021 telework policy, forcing them to go back to the Petri dish in Santa Fe.
“I just was hoping that it wasn’t going to happen until springtime. That’s what I was hoping for,” Burton said, recalling how she felt when the directive came down in January. “I felt it was too soon.”
Even before she left, she does not remember any of her coworkers or superiors talking about air filtration or ventilation at any point since March 2020. State officials installed an HVAC system in the building in 2011, Burton said, but she does not know whether it filters the air or how much fresh air it brings in from the outside.
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The Communications Workers of America Local 7076 is challenging the state’s rescission of the policy with the New Mexico labor board by arguing it is a violation of the telework policy and state workers’ collective bargaining agreement.
The union, which represents about 2,500 state workers across 13 agencies, is also pushing to codify telework into state law.
On Jan. 27, all Environment Department employees received an email from Secretary James C. Kenney giving them “additional details and directions to help make the switch back to the office” six days later on Feb. 2.
“While I know many of you were disappointed by (the state’s) decision, it is my hope that we can navigate the return to office with comradery and support for each other,” Kenney wrote.
Burton on Jan. 10 had formally told her employer that she wants to keep working remotely from home, and not return to the office in the “open cubicle unmasked environment” of the Runnels Building.
She wrote that her reason is to avoid “unmasked exposure to the viruses currently circulating since I am at high risk due to age and asthma.”
That same day, she returned a one-page form filled out by her nurse practitioner, who wrote that she has asthma, and she would have difficulty breathing if she is exposed to a viral or bacterial infection.
That’s not the only symptom that comes with a COVID infection. An estimated 16 million U.S. adults have long COVID, where symptoms persist for at least three months after the infection, and can last for years.
Symptoms of long COVID, neuroscientist and science journalist Stephani Sutherland writes, can include difficulty with memory, attention, sleep and mood; pain, fatigue, dizziness, a racing heart, high or low blood pressure, and gut disturbances.
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The nurse practitioner recommended Burton’s employer allow her to work from home to limit exposure to the virus.
Burton carried the nurse practitioner’s note and her inhaler into a meeting with her supervisor and Leslie Munoz, an employee and labor relations manager at the state Environment Department.
“The interview is the kicker,” Burton said.
Munoz told her the department would provide her with an air purifier next to her cubicle, masks, hand sanitizer, and a sign on her wall asking her coworkers to social distance.
Burton told them the office is too cramped to allow for social distancing. From her experience working in the office, she estimates the work spaces are three-and-a-half feet wide. That would make social distancing impossible.
“They cram so many of us into that space, that we have these narrow little walkways around cubicle sections,” Burton said. “It’s ridiculous. I don’t consider that safe.”
Toward the end of the interview, Burton said she held up her inhaler and said, “I really do have asthma.”
She said Munoz responded with indifference.
“It seemed to me she didn’t think that was a reason to be concerned,” Burton said. “And I knew then, that they weren’t gonna give it to me.”
Sure enough, a couple hours later Munoz formally denied Burton’s request.
“Given the undue hardship on the agency, NMED is unable to grant the request for 100% telework,” Munoz wrote in her letter to Burton. “We can work together, however, to reduce your exposure in the workplace/office setting as much as possible.”
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At first, Burton told herself she couldn’t handle the situation, and that she would retire at the end of the month.
“And then I thought, ‘Well, I can’t do that, because my supervisor doesn’t have any people,” Burton said. “I’m her only employee right now.”
When the boss at the environmental department wrote to his workers about the new telework policy, he thanked his deputy cabinet secretary, and other people assigned to health and safety in the office “for their exceptional work to accommodate as many employees as possible in such a short amount of time.”
“They have worked day, night and weekends to ensure we have a proper and safe office space for our employees,” Kenney wrote.
Burton is not the only state worker denied accommodations under the Americans with Disabilities Act to keep teleworking, said Linsey Hurst, CWA agency vice president for the Environment Department.
Other state workers with attention deficit disorder and diabetes have also been denied ADA accommodations for telework, Hurst said. They include workers at NMED, the Public Education Department, and the Department of Health, Hurst said.
CWA staff are directing workers in similar circumstances to Burton to the federal Equal Employment Opportunity Commission and the nonprofit law firm Disability Rights New Mexico.
Any estimate of how many state workers have been denied accommodations so far would likely be a severe undercount, Hurst said.
Reps. Joy Garratt (D-Albuquerque), Christine Chandler (D-Los Alamos), and Patricia Roybal Caballero (D-Albuquerque) on Feb. 6 introduced House Bill 300, which would put a telework policy into the state law governing working conditions for state workers.
The bill will get its first hearing at 1:30 p.m. today in the House Labor, Veterans’ and Military Affairs Committee in Room 315 at the Roundhouse.
The three-page bill would mandate that if public employees’ work duties do not require their physical presence, they would be eligible for telework.
Megan Green, executive vice president of CWA, said members report that with inflation, higher fuel prices, and a lack of available child- and elder-care, and no salary increases, “returning to their offices full time would effectively be a pay cut, leaving them with less time for their families and less money to support their local economies.”
The bill would also change the state law governing the New Mexico Personnel Board, to require them to adopt rules around a telework plan.
Green added that working conditions for New Mexico state workers need to be comparable to competitive employers, and neighboring states like Colorado, Arizona, and Utah are still offering telework.
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When asked about House Bill 300, Burton said she thinks it would be great.
“We’re still in a pandemic, whether you want to call it a pandemic or not, we’re still in one,” Burton said. “It’s like, you feel like you are in the Twilight Zone. These people are making decisions about your safety, and they’re totally not plugged into reality.”
“I only have like four hours of sick time left, so I am going in like I’m supposed to,” Burton said in an interview.
Burton does not want to catch COVID, RSV or the flu.
“I don’t understand why being 72 and having asthma, with all the stuff going on, the viruses that are out there now, it’s not a good reason,” Burton said. “I don’t understand why that isn’t a good reason.”
Burton wondered if others have better reasons for teleworking.
“I don’t think they know how to handle this situation, frankly,” Burton said. “Why they came to this decision, I’m sure there’s a good reason. I’ll probably never know what the reason is. But I think it’s stupid. I don’t think it makes sense.”
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