On September 16, 2020, in Peeples v. Clinical Support Options, Inc., No. 3:20-cv-30144, a federal district court in Massachusetts took the unusual step of precluding an employer from discharging an employee who claimed an inability to work in the office due to a disability, and ordered the employer to allow the employee to telework for at least 60 days.
Gabriel Peeples (whom the district court refers to as “they,” “them,” and “their”) is an assistant manager at Clinical Support Options Inc. (CSO) in Greenfield, Massachusetts. Peeples suffers from moderate asthma. On March 18, 2020, after the U.S. Centers for Disease Control and Prevention (CDC) acknowledged that people with asthma face greater risk of serious illness from COVID-19, Peeples advised their direct supervisor that they needed to telework to protect their health. Peeples then began working remotely, performing all the essential duties of their position while teleworking.
In May 2020, Peeples’s supervisor told Peeples that all managers needed to return to the workplace. Thereafter, Peeples “submitted a note from their primary care provider indicating that [they] needed to work from home,” and CSO permitted Peeples to continue teleworking for four weeks. However, on June 19, 2020, CSO denied Peeples’s request to continue teleworking. Peeples thus “‘reluctantly’” returned to the workplace on July 6, 2020, only to find that CSO had not provided all the protective items that they had requested, including personal protective equipment, masks, hand sanitizer, and wipes. After CSO provided Peeples with several KN95 masks, Peeples claimed they could not effectively perform their job while wearing a mask, especially when interacting with children. Peeples also submitted a note from their allergist to support a renewed request to work from home.
Peeples tendered a conditional resignation on August 10, 2020, which was to take effect on September 5, 2020. The resignation letter stated that Peeples would rescind the resignation if CSO permitted them to telework. CSO denied Peeples’s request to telework, and informed them that it “‘[would] enforce its applicable policies’” if they tried to telework instead of reporting to work in person. Peeples interpreted CSO’s statement to mean that CSO would terminate their employment.
In response, Peeples filed a complaint in the U.S. District Court for the District of Massachusetts claiming disability discrimination, failure to provide a reasonable accommodation, and creation of a hostile work environment, in violation of the Americans with Disabilities Act (ADA) and Chapter 151B of the Massachusetts General Laws. Peeples requested that the court issue a preliminary injunction requiring CSO to permit them to telework “‘for the duration of the [COVID-19] pandemic’” and “to discontinue its discriminatory practices.”
The District Court’s Analysis
In deciding the motion for preliminary injunction, the court needed to determine: “(i) the movant’s [i.e., Peeples’s] likelihood of success on the merits of the claims; (ii) whether and to what extent the movant [would] suffer irreparable harm if the injunction [was] withheld; (iii) the balance of hardships as between the parties; and (iv) the effect, if any, that an injunction (or the withholding of one) [might] have on the public interest.”
The court held that Peeples was likely to succeed on the merits of the failure to accommodate claim. For this claim, Peeples, the plaintiff, needed to show that (1) they were disabled within the meaning of the ADA; (2) they were able to perform the essential functions of the job with or without a reasonable accommodation; and (3) the employer, “despite knowing of the disability, did not reasonably accommodate it.”
As to the first element, the court stated that Peeples was likely to prevail on their contention that their asthma was a disability, at least during the COVID-19 pandemic, since Peeples pled that asthma created a higher risk for serious illness stemming from COVID-19. As to the second element, the court held that Peeples was likely to be able to prove by a preponderance of the evidence that they were able to perform the essential functions of their job with or without reasonable accommodation, given that Peeples had already successfully done so for four months.
On the third element, the court found that Peeples was likely to prevail in demonstrating that CSO had not reasonably accommodated their disability. CSO claimed that it had accommodated Peeples by providing KN95 face masks, hand sanitizer and wipes, an air purifier, and even a private workspace in CSO’s program area on the second floor, which has less foot traffic than the first floor of the organization’s Greenfield location. However, the court rejected these “so-called accommodations” as insufficient, characterizing them as “workplace safety rules rather than an individualized accommodation to address [Peeples’s] disability.” Instead, the court held that CSO needed to conduct an individualized assessment to determine whether teleworking should be permitted as a reasonable accommodation for Peeples’s disability.
The court further held that Peeples was likely to suffer irreparable harm if the court did not grant the preliminary injunction. The court noted that “losses occasioned by employment disputes often do not rise to the level of irreparable harm,” but that the COVID-19 pandemic had created an unusual situation in Massachusetts where the state’s unemployment rate was particularly high and where the loss of a job could create a “cascade of further negative consequences, including, at least in the short-term, the likely loss of employer-provided health insurance.” The court also noted that because of Peeples’s health condition, they were at risk of irreparable harm “in the form of the possible serious consequences of an infection if they [were] not permitted to telework.”
The decision in this case is important for employers that have allowed employees to telework during the pandemic. Employees may wish to use teleworking arrangements to support their requests for reasonable accommodation under the ADA when they can demonstrate that they are able to perform the essential functions of their jobs remotely. Employers may want to be aware that courts may recognize that respiratory impairments, such as asthma, can constitute an ADA disability during the COVID-19 pandemic. Finally, employers may also want to be mindful of the possibility that courts may view measures such as the provision of face masks, hand sanitizer, wipes, air purifiers, and even private spaces, as general employee safety measures and not as reasonable accommodations to an employee’s disability.
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 programs.