The COVID-19 pandemic has led to an explosion of remote work, including for positions traditionally not considered eligible for remote work. As employers have returned employees to office work environments, some employees who historically worked on-site have requested continued work from home as an accommodation under the Americans with Disabilities Act (ADA). On September 7, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) brought its first lawsuit alleging that an employer had discriminated against a disabled employee by failing to accommodate her by allowing work from home due to her increased risk of COVID-19 and by terminating her employment.
ISS Facility Services, Inc., a provider of office maintenance and management services, employed Ronisha Moncrief as a “Health Safety & Environmental Quality Manager” in one of its manufacturing facilities. The complaint alleges that Moncrief suffers from “physical impairments, including chronic obstructive lung disease and hypertension.” Around March 1, 2020, “Moncrief became sick while at work with a fever, sweats, and an uncontrollable cough”; a few days later, she was diagnosed with obstructive lung disease. Her doctor provided ISS Facility Services’ “ADA Reasonable Accommodation Request Medical Certification Form” recommending that she “work from home and take frequent breaks while working.”
Around the same time, the COVID-19 pandemic caused ISS Facility Services to move its employees to a rotational schedule, by which employees, including Moncrief, “work[ed] from home four days per week.” ISS Facility Services required its staff to resume working five days per week in the office beginning June 1, 2020.
Moncrief requested an accommodation to work from home two days per week “with frequent breaks while working on-site.” Due to her obstructive lung disease, Moncrief is considered “high-risk for contracting COVID-19.” ISS Facility Services denied her accommodation request on July 20, 2020, though other managers were permitted to work from home.
A few weeks later, Moncrief’s supervisor “recommend[ed] that Moncrief 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 her performance was deficient.
The EEOC’s complaint requests multiple forms of relief, including a permanent injunction enjoining ISS Facility Services from discriminating against employees “on the basis of disability” or against employees “who engage in protected activity.” The complaint also requests that the company implement “policies, practices and programs which provide equal employment opportunities for all employees who engage in a protected activity” and provide Moncrief with back pay, compensation for pecuniary and nonpecuniary losses, and punitive damages.
This case signals to employers that the EEOC is closely watching how employers handle requests to work remotely as a reasonable accommodation under the ADA. The EEOC has taken the position that temporary remote work might be relevant to considerations of work-from-home requests if the period of temporary remote work demonstrated that the individual could satisfactorily perform all the essential functions of the position.
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. Employers may have a harder time establishing that telework is not a reasonable accommodation if employees have been working from home during the COVID-19 pandemic. Employers may want to outline why the essential functions were not being performed successfully from home, or what about the role is different on-site than during the time the employee was working from home.
The case further highlights the importance of thorough documentation. While employers have the prerogative to move to discharge an employee at any point, employers that have documented performance concerns may be more able to demonstrate that adverse actions were not causally related to protected activity.
Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.