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The “political question doctrine” traditionally provided that courts should not get involved in certain kinds of matters that are more appropriately decided by the elected branches of government. The U.S. District Court decisions in a case about the 2018/2019 government shutdown, brought by Kator, Parks, Weiser & Harris, PLLC, demonstrate an expanding definition of the doctrine. The lawsuit about the shutdown was dismissed under an expanding political question doctrine, which seeks to avoid any matter that might have any implications for matters of partisan politics.

Kator, Parks, Weiser & Harris, PLLC, filed a lawsuit in U.S. District Court on behalf of four federal employees who were required to work without pay during the 35-day government shutdown during December 2018 to January 2019. The suit alleged, among other things, that the government requiring employees to work without pay under threat of discipline or removal violated the Thirteenth Amendment prohibition against involuntary servitude, and that limiting employees’ rights to seek outside work unconstitutionally violated their Fifth Amendment protections for individual liberty and property.

The Federal District Court denied a motion for an emergency temporary restraining order, making clear in its Order that “the Judiciary is not just another source of leverage to be tapped in the ongoing internal squabble between the political branches.” When the Government moved to dismiss the claims as moot after funding was restored and the government re-opened, it argued that if the Court decided the claims, “it would require this Court to effectively place itself in the middle of a political dispute—namely, a dispute over the federal budgetary process, and how the government should operate when that budgetary process fails.”  The Court agreed, holding that judicial restraint is advised “where the underlying dispute arises from a budgetary dispute involving ‘complex political choices.’”  The Court sought to avoid involvement in a matter that might affect the politics of decision making between the Congress and the President.

Throughout the litigation of the shutdown case, the Government warned the Court against intervening in a “squabble” between the two political branches. Despite the constitutional harms alleged, the Court agreed, and shied away from claims that sought resolution of constitutional questions that resulted in real harm to the claimants. The questions before the Court were not about who should win in a budget battle between the two ends of Pennsylvania Avenue—the questions were about what constitutional rights are afforded federal employees and how those rights should be respected during a lapse in appropriations.

This may happen again in the three cases before the United State Supreme Court regarding President Trump’s financial records.  In the cases of Trump v. Mazars, Trump v. Deutsche Bank, and Trump v. Vance, President Trump has fought tooth and nail to immunize himself from congressional oversight seeking financial records, and prevent a New York prosecutor’s investigation into alleged criminal activity by the Trump Organization. The defendants in the Mazars and Deutsche Bank cases are set to produce Trump financial records in response to Congressional subpoenas. In Vance, President Trump seeks to avoid prosecution, and the attendant subpoenas seeking financial documents.

These cases present very important foundational questions about the presidency, certainly requiring a constitutional interpretation: should the presidency come with nearly total legal immunity from prosecution or oversight for the incumbent?

In this instance, if the Supreme Court decides to defer to lower court decisions, it would mean President Trump loses, because the Mazars and Deutsche Bank defendants would then be required to produce Trump’s financial records. Likewise, the New York state prosecution could continue with its efforts to secure his financial records. This would mean the Trump Administration’s broad assertions of total immunity from prosecution and oversight are not to be ratified at this point.

The COVID-19 pandemic has accelerated the general workplace trend toward greater use of telework (also known as telecommuting, work from home, tele-work, or remote working).  After the expiration of social distancing mandates, some employers may choose to extend the availability of telecommuting for their workers.  After all, there are many valid business reasons for employers to expand telework as an option.  But workers need to be aware that telecommuting is not a legal right, except in very limited circumstances.

In the field of employment law, it always a good idea to remember that worker rights are limited.  Employers are very much aware of this fact.  The bottom line is this: if an employer does not want to provide telework as an option, then the law generally supports the employer’s decision.

But there may be a legal right to telework if an employee with a disability needs telework as a reasonable accommodation.  As explained by the EEOC, “Changing the location where work is performed may fall under the ADA’s reasonable accommodation requirement of modifying workplace policies, even if the employer does not allow other employees to telework.”  (EEOC Guidance, “Work at Home/Telework as a Reasonable Accommodation,” Feb. 3, 2003.)

But what about requesting telework as an accommodation in connection with COVID-19?  If an employee has a documented medical condition making the employee particularly susceptible to infection, and if the job in question can be successfully performed remotely, many employers are likely to provide telework as a temporary accommodation during the pandemic, especially if the request is supported by a note from the employee’s doctor.  There are likely to be other medical situations where telework provides a reasonable accommodation during the pandemic.

Telework as a reasonable accommodation is well established legally, but not all employers will quickly agree to such a request.  For example, the employer may express doubt that the employee has a disability.  Or the employer may claim that the essential functions of job in question cannot be performed remotely.  And it is very common for employers to require medical documentation to support a requested disability accommodation.

Workers with a medical issue may want to explore with their doctor and their employer the possibility of telework as an accommodation.  An additional resource for employees and employers is the Job Accommodation Network (JAN), which provides free consultations to assist with accommodation issues.  JAN provides a specific webpage with discussion of telework issues.

For a free consultation to discuss whether you may be eligible to use telework as a reasonable accommodation, contact us.

KPWH attorney Cathy Harris secured a hold on a proposed suspension of a federal whistleblower at the Department of Education. Our client had blown the whistle to the Washington Post regarding the Trump administration’s 2018 budget proposal. KPWH was assisted by the U.S. Office of Special Counsel, which agreed to our request to the Department of Education that the suspension be placed on hold. The matter is now under review to determine if there has been whistleblower retaliation.

To read an article in the Washington Post about the decision, click here..

To contact Kator, Parks, Weiser & Harris, click here.