EEOC files first pandemic discrimination lawsuit for refusal of teleworking accommodation – employment and HR

The COVID-19 pandemic has caused an explosion in remote working, including for positions that are traditionally not considered remote. Because employers have returned their employees to office work environments, some employees who have worked on-site in the past have applied to continue working from home as accommodation under the Americans with Disabilities Act (ADA). On September 7, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) filed its first lawsuit alleging that an employer discriminated against a disabled worker by not accommodating her due to her increased risk of COVID-19 by doing work Permitted termination of their employment at home.

background

ISS Facility Services, Inc., a provider of office maintenance and administration services, has appointed Ronisha Moncrief as a Health Safety & Environmental Quality Manager at one of its manufacturing facilities. The lawsuit alleges that Moncrief has “physical impairments including chronic obstructive pulmonary disease and high blood pressure”. Around March 1, 2020, “Moncrief fell ill while working with a fever, sweats, and uncontrollable cough”; A few days later, she was diagnosed with obstructive pulmonary disease. Her doctor provided ISS Facility Services’ ADA Reasonable Accommodation Request Medical Certification Form and recommended that she “work from home and take frequent breaks during work.”

At about the same time, the COVID-19 pandemic caused ISS Facility Services to put its employees on a rotation schedule according to which employees, including Moncrief, “work”[ed] from home four days a week. “ISS Facility Services asked its employees to return to the office five days a week from June 1, 2020.

Moncrief requested housing so that he could work from home two days a week, “with frequent breaks while on-site work”. Because of her obstructive pulmonary disease, Moncrief is considered a “high risk of contracting COVID-19”. ISS Facility Services declined your accommodation request on July 20, 2020 even though other managers were allowed to work from home.

A few weeks later, Moncrief’s superiors “recommend”[ed]that Moncrief will be removed and replaced due to ‘performance issues’. ”ISS Facility Services terminated Moncrief’s employment on or about September 11, 2020. The complaint alleges that Moncrief never received a warning that its performance was poor.

The lawsuit

The EEOC’s complaint calls for several forms of relief, including an injunction prohibiting ISS Facility Services from discriminating against employees “on the basis of a disability” or employees “doing a sheltered job”. The complaint also requires the company to “implement policies, practices and programs that provide equal employment opportunities to all employees in sheltered work” and provide Moncrief back payments, compensation for financial and non-pecuniary losses and punitive damages.

The central theses

This case signals to employers that EEOC is closely monitoring how employers treat remote work requests as a reasonable accommodation under the ADA. The EEOC believes that remote working temporary work may be relevant to the considerations of home work requests if the remote temporary working period has shown that the person can perform all of the essential functions of the job in a satisfactory manner.

When an employer receives information that an employee may be disabled, the ADA requires them to participate in the interactive process to determine if placement is required. Employers may find it harder to determine that teleworking is not a reasonable accommodation if workers have been working from home during the COVID-19 pandemic. Employers may want to explain why key functions were not performed successfully from home, or what the role on site is different than when the employee was working from home.

The case underscores the importance of thorough documentation. While employers have the right to fire an employee at any time, employers who have documented performance concerns may be more likely to be able to demonstrate that adverse actions were not causally related to a sheltered job.

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