Employers May Soon Be Legally Required to Provide Ergonomic Workstations to Workers

November 28, 2020
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Legal Questions Around Standing Desks

[Editor’s Note: This article was written in 2018—prior to the advent of the coronavirus pandemic—and as we wrote nearly a year into the pandemic, the trend reported below has only been drastically accelerated by millions of employees having transition to a work-from-home regime and rampant so-called “kitchen table ergonomics” that transpired as a consequence.]

It’s a fact that in several European and Scandinavian countries employees are required by law to provide sit-stand workstations to employees with sedentary jobs. As a consequence, the largest and most established standing desk base manufacturers hail from countries like Denmark, Sweden, and Germany. These companies have also built the largest linear actuator (standing desk leg motors) manufacturing plants in the USA, in places like Michigan and Kentucky. With the European market already relatively saturated, the American market is where the meteoric growth is occurring now.

While no law mandating sit-stand desks has hit the federal books in the USA yet, one very well might in the near future. As with so many fair employment rules, California has taken the first steps towards enacting a law like this. California employment law already requires that “all working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats,” a law which has been strengthened by legal precedent over the past few years.

Expensive Lawsuits

There has recently been a spate of lawsuits in which very large settlements have been extracted from employers who failed to provide adequate seating, and many more such suits are now working their way through class action courts. Walmart settled such a suit brought under California’s Private Attorneys General Act (PAGA) for a whopping $65 million. Bank of America also settled a similar class action suit for an astounding $15 million and had to agree to accommodate all bank tellers in California with appropriate seating. Abercrombie & Fitch agreed to pay $700,000 to settle a similar class action brought by sales associates.

Though technically the seating accommodation law has been on the books in California’s Wage Orders for decades, it wasn’t until the California Supreme Court provided a clarifying interpretation of it in Kilby v. CVS Pharmacy, Inc. (2016) that class action law firms throughout the state began to take serious notice. As this is an ergonomics blog, not a legal blog, we refer you to the above links if you’d like to take a deeper dive into the background and implications of these specific cases.

This is a good time to caveat that our interpretation is from the perspective of experienced ergonomics experts, not as legal authority. Consult with your own counsel before making any legal decisions.

Evolving Liability Landscape

In the past whenever you heard about a lawsuit regarding seating, it was typically related to an on-the-job injury claim, like a faulty chair design or a failure to accommodate an employee who suffered from back issues with a proper ergonomic chair. So the new spate of class action suits encouraged by the Kirby decision is the first drop of water in the pond, and will surely have a ripple effect in other states, and eventually federal legislation and rulings. It’s just a matter of time.

While this seating litigation only affects workers who have to stand in their jobs as cashiers, tellers, etc., a preponderance of lawsuits has not yet been brought to court (to our knowledge) regarding standing desks—which is clearly an entirely different matter.

The European and Scandinavian countries that enacted laws for standing desk accommodations are different from the US in that they have socialized medicine, and so the costs of not accommodating employees would be borne by all taxpayers in terms of medical costs, and in the case of government workers, lost productivity.

We do things differently in the U.S. since the majority of medical insurance costs are paid for by employers (72% as of 2018) and we don’t have a broad public health insurance system, at least not yet. Not to get into political analysis in this forum, but of course there are advocates for this like Bernie Sanders, and should they succeed, then someday these kinds of employee accommodation laws could come to pass here as well.

More commonly in the U.S., these trends have been driven by progressive employers like Intel, who just decided it made economic sense for them to get ahead of the curve and not wait for legislation and expensive litigation. Since 95+% of the Fortune 500 are self-insured these days, they can think like a small country and do the right thing. And overall we’re seeing that they are.

Providing a free standing desk to any employee for the asking is already the #1 fastest-growing HR benefit in the US, with more than half of the employers surveyed by the Society for Human Resources Management (SHRM, 2019 study) reporting that they no longer require a doctor’s note. Some are even providing treadmill desks for the asking.

We’ve written before about how the EEOC is suing companies who offer overly generous corporate wellness benefits to their healthiest employees, effectively turning overweight employee into a new “protected class.”

The bottom line is that if common sense and an abundance of medical research tells you that sitting too long is bad for your health, or for that matter that standing too long is also bad, then an employer would be wisest to accommodate all employees with sit-stand workstations and healthy seating.

The smartest employers obviously already are. Some of the laggards may prefer to wait to be sued before making changes to their accommodation policies, unless and until broader multi-state or federal legislation eventually requires it of them. Of course we are biased in our opinion that this penny-wise, pound-foolish thinking ultimately only hurts their own bottom line in medical expenses, employee turnover and productivity losses.

What Your Employer Can Do to Mitigate Risk

We currently see very broad trend among American employers to build out most new office buildings (including remodels) with standing desk furniture from the outset. Certainly, this is already commonplace in industries like software, health care, finance, law, and even publishing, where their most valuable assets walk out the door every night.

There’s also a geographical bias in that many employers from Silicon Valley to Wall Street have been at the forefront of changing out all their desks to sit-stand because a) retention and recruiting is difficult and expensive in those markets, and b) they want to get maximum productivity out of these very expensive desk workers.

Where the opportunity still lies ahead nationally is in retrofitting over 100 million fixed-height desks that are still being used by sedentary office workers. Our mission has just begun.

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