The first COVID-19-related remote work lawsuit has been filed by the Equal Employment Opportunity Commission (EEOC). On September 7, 2021, the EEOC filed a lawsuit alleging disability discrimination under the Americans with Disabilities Act (ADA), after an employer allegedly denied a telework accommodation request from an employee.
As of this writing, this case is the only lawsuit the EEOC has filed concerning an ADA accommodation request related to COVID-19. One legal blog notes, “The suit is a challenge to the typical posture of courts that frequently consider working from home to be an unreasonable accommodation.” In this article, we’ll explore the basics of this case and the implications for employers regarding ADA workforce accommodations.
What to know about the EEOC’s lawsuit
This case was filed in the U.S. District Court for the northern District of Georgia and is referred to as EEOC v. ISS Facility Services, Inc. The suit was filed on behalf of Ronisha Moncrief who was employed as a health and safety manager by ISS. According to Bloomberg Law, Moncrief was fired after her employer denied her request to continue working from home despite her heightened risk of COVID-19 due to heart and pulmonary conditions.
The complaint and origin of the case dates back to the early days of the COVID-19 pandemic. From March 2020 through June 2020, all employees at the ISS facility where Moncrief worked were required to work remotely. When the workplace reopened, Moncrief asked to work remotely two days per week as well as be permitted to take frequent breaks while working on-site because of issues related to her chronic obstructive lung disease and hypertension, which causes breathing difficulty. Her doctor provided Moncrief’s employer with the “ADA Reasonable Accommodation Request Medical Certification Form” recommending that she “work from home and take frequent breaks while working.” Her request was denied and she was later fired despite the fact that other employees in her position were purportedly allowed to continue working from home.
Marcus Keegan, regional attorney for the EEOC’s Atlanta district office, said, “The ADA requires employers to provide reasonable accommodations to employees with disabilities to ensure those with disabilities have an equal opportunity to work to their full ability. In light of the additional risks to health and safety created by COVID-19, it is particularly concerning that an employer would take this action several months into a global pandemic.”
The EEOC’s complaint requests multiple forms of relief including back pay, compensation for losses, and punitive damages for Moncrief. Additionally, the EEOC is seeking a “permanent injunction enjoining ISS Facility Services from discriminating against employees on the basis of disability or against employees who engage in protected activity.
What employers need to know about this case in terms of ADA protections
Labor and employment law firm, Ogletree Deakins, points out under the ADA, “if an employer is provided with information that an employee may be disabled, it has a duty to engage in the interactive process to determine whether an accommodation is necessary.” Since many employees worked from home during the COVID-19 pandemic, it is going to be more difficult for employers to prove that telework is not a reasonable accommodation. Plus, this case highlights why documentation is so important. With thorough documentation about performance concerns, employers will have an easier path to prove that an employee was fired due to performance and “not causally related to protected activity”.
Employers should take note that the EEOC considers telework to be a reasonable accommodation with respect to COVID-19 in some circumstances, as evidenced by EEOC v ISS Facility Services, Inc. lawsuit. To minimize risk and ensure compliance, employers should follow EEOC guidance when considering disability accommodations.
Implications for employers considering ADA workforce accommodations
According to a 2019 Bloomberg Law analysis, employers have generally won the majority of rulings over whether they can reject employee requests for telework as a disability accommodation. However, the COVID-19 pandemic led to a sharp increase in the number of teleworking arrangements for workers across the country. As such, many legal experts say that employer arguments against telework as a disability accommodation are now much weaker.
This case, EEOC v. ISS Facility Services, Inc., is a sign that the EEOC is watching how employers handle disability accommodation requests. Employers must closely follow the law and be sure to engage in the ADA interactive process with any employee who requests accommodations.
According to SHRM, the ADA interactive process is a discussion about an applicant’s or employee’s disability and an essential component of compliance. In this discussion, it’s important for the applicant or employee, health care provider, and employer to share information about the nature of the disability and the limitations that may affect the performance of essential job duties.
Thoroughly review the accommodation request. It is highly recommended to document the request even though it is not required under the ADA.
Obtain written medical release or permission from the employee so that follow-up questions and information can be obtained from the employee’s health care provider.
Request appropriate documentation from the employee regarding the nature of impairment, severity, duration, limitations, and how those limit the employee’s ability to perform essential job functions.
Create and maintain a safe workplace
As your business navigates the road ahead, be sure to consult legal counsel when appropriate, including during the ADA interactive process, accommodation dec
isions, and upon notice of a potential lawsuit. It’s important to maintain documentation to help minimize risk to your business in the case of legal action.