Earlier this month, the Equal Employment Opportunity Commission (EEOC) filed its first lawsuit under the American with Disabilities Act (ADA) against a facility management services company, ISS Facility Services, Inc., due its failure to permit one of its employees to continue working remotely amidst COVID. The case is EEOC v. ISS Facility Servs., Inc., No. 1:21-CV-3708-SCJ-RDC (N.D. Ga. 2021).
Ronisha Moncrief worked as a Health Safety and Environmental Quality Manager for ISS in its Georgia office. Right before the pandemic hit, she was diagnosed with obstructive lung disease. She was advised by her doctor to telework and submitted required paperwork to support that accommodation, which ISS approved. When COVID hit, ISS instructed all of its employees to work from home.
Come June 2020, however, ISS required all of its employees to return to the actual workplace. Ms. Moncrief’s job required close contact with other employees and a shared workspace. As such, she sought an accommodation to work remotely two days a week and to also be permitted to take frequent breaks while working on-site due to her lung condition, putting her in a high risk category. Allegedly, ISS denied the request and terminated her employment two months later for performance reasons.
The EEOC filed suit alleging that ISS failed to accommodate Ms. Moncrief’s disability and also terminated her in retaliation for requesting an accommodation. The EEOC is seeking injunctive relief and a variety of compensatory and punitive damages.
Obviously, these are just allegations and certainly there is more to the “story” than is presented by the EEOC in its lawsuit. That said, let’s focus on what employers need to keep in mind as we continue to navigate the COVID work world. Now that many companies have, on varying levels, seen that remote work (on a full-time basis) is a possibility for many positions, it is going to be harder for employers to credibly argue that telework is not a reasonable accommodation that needs to be considered and offered on some level.
Next, while Ms. Moncrief’s lung condition did not prevent her from performing the essential functions of her position (which is a required element to prove an ADA-covered disability), her lung condition gave her a heightened risk of contracting COVID-19, which the EEOC is arguing entitled her to an accommodation (specifically, a telework arrangement).
What next? Employers that want truly to insist on work in the office need to ensure that job descriptions accurately set forth employee job duties, explain why in-person work is required, explain why remote work will not be an adequate substitute and would cause an undue burden on the employer. Similarly, telework policies need to clearly notify the workforce that remote work is not a permanent or even long-term option and that the employer may rescind the arrangement at any time. Finally, it is helpful, when accurate, to remind employees of any job duties that require on-site presence.
The reasonable accommodation process requires interactive dialogue between the employer and employee under all circumstances. With COVID and remote work, this will be even more essential to navigate what will likely be a steady stream of EEOC charges and related claims that the failure to continue teleworking is a violation of the ADA. Make sure your disability accommodation procedures are set and you are ready for those requests, if they have not already started.