Along with the new wave of post-COVID litigation surfacing across the country, the EEOC has now brought its first lawsuit against an employer for allegedly failing to accommodate and unlawfully terminating a disabled employee who had requested to work remotely due to COVID-19. In this case, EEOC v. ISS Facility Services, Inc., the EEOC brought suit on behalf of former ISS Facility Services (“ISS”) employee, Ronisha Moncrief, alleging various violations of federal employment law.
According to the Complaint, ISS is a provider of office maintenance and management services. Moncrief worked for ISS as a Health Safety & Environmental Quality Manager at a pharmaceuticals manufacturing facility in Newton County, Georgia. In early March 2020, Moncrief was diagnosed with obstructive lung disease. Due to this condition, Moncrief requested a reasonable accommodation under the Americans with Disabilities Act (“ADA”), which included working from home and taking frequent breaks from working. Meanwhile, due to the COVID-19 pandemic, ISS modified its work schedule for all employees at Moncrief’s facility so that the employees worked from home four days per week, and rotated to work in-person at the facility only one day per week.
However, in or around June 2020, ISS required its staff to return to work five days per week. In response, Moncrief again requested to work from home two days per week, with frequent rest breaks. At the time of this request, Moncrief allegedly advised ISS that she required this accommodation due to her diagnosis of severe pulmonary disease, which made her high-risk for contracting COVID-19. The EEOC claims that Moncrief’s position required her to have close contact with many employees, including sharing a desk with her co-workers. The EEOC also alleges that Moncrief could perform all the essential functions of her position with the requested accommodation.
ISS Denies Remote Work Request and Terminates Employee for Poor Performance; EEOC Brings Suit
The Complaint states that ISS ultimately denied Moncrief’s accommodation requests, while permitting other managers in the same title as Moncrief to work from home. Approximately two months after the accommodation request was denied, ISS terminated Moncrief’s employment due to performance issues. Moncrief claims that she had not been on notice of such performance issues prior to her termination and disputes that this was the true reason for her separation.
On September 7, 2021, the EEOC brought suit against ISS in the Northern District of Georgia, alleging violations of the ADA. The ADA, which covers employers with 15 or more employees, requires employers to provide reasonable accommodations to bona fide disabled employees, so long as the accommodation would not create an undue hardship on the employer’s operations.
The EEOC claims that ISS discriminated against Moncrief in violation of the ADA by denying her request for a reasonable accommodation, and then terminated her employment because of her disability and in retaliation for engaging in a protected activity. ISS has yet to respond to the Complaint and the action remains pending in Georgia federal court.
What Does This Case Mean for Employers?
Employers in all industries assessing remote work accommodation requests should stay apprised of this matter and be prepared for many more lawsuits of this nature to appear nationwide. Because employers are operating in unprecedented times due to the pandemic, and while the case law is still unsettled regarding employer obligations to honor requests for telework due to COVID-19, all employers should carefully evaluate any accommodation requests related to COVID-19 to determine what is reasonable. This means having a well-documented interactive process to assess the employee’s accommodation requests, avoiding snap decisions regarding telework requests, and using appropriate judgment under the law to determine what constitutes an “undue hardship” prior to denying any request for an accommodation raised by disabled employees.
In that regard, the EEOC has provided COVID-19 Guidance that courts are likely to strongly consider when evaluating any failure to accommodate claims related to the ongoing pandemic. According to the EEOC’s guidance on ADA accommodations during the pandemic:
- The employer should first consider what low-cost solutions may help to prevent exposure to COVID-19 in the workplace, including but not limited to using plexiglass and other barriers between staff, limiting direct interaction between employees and/or customers, requiring face masks and other enhanced PPE, designating one-way aisles, etc.
- Employers should next consider whether it is possible to temporarily restructure marginal job duties, temporarily transfer the employee to an alternative position (with the same terms and conditions of employment), or modify the employee’s work schedule or work location to reduce the likelihood of exposure to others in the workplace. These considerations are all part of the “interactive process” that covered employers are required to engage in under the ADA.
- The employer may ask permissible questions to confirm that the individual has a disability, inquire how the requested accommodation would assist the employee in performing the essential duties of their position, explore alternative accommodations that may effectively meet the employee’s needs and obtain appropriate medical documentation in support of the request.
- When assessing whether a requested accommodation would cause an undue hardship on an employer’s business, the employer may consider factors such as whether current circumstances brought about by the pandemic create “significant difficulty” in providing for certain accommodations. For example, a significant difficultly may occur if it is more difficult for the employer to acquire certain items that are needed to accommodate teleworking employees, or more difficult to hire temporary workers to make up the work of employees who have been reassigned.
- The employer may also consider whether the requested accommodation poses a significant expense compared to the employer’s overall budget and resources, particularly in light of any loss of income or reduced discretionary funds due to the pandemic.
- If the requested accommodation would cause an undue hardship on the business, the employer and employee should work together to determine if there is a reasonable alternative to the original request.
Employers should also be aware that, as of September 9, 2021, the EEOC has clarified that individuals with “Long COVID” may qualify as disabled under the ADA. According to the US Department of Health and Human Services, Long COVID refers to people who have new or ongoing symptoms of COVID for weeks or months after they are infected with the virus. These symptoms can include, but are not limited to, tiredness or fatigue, difficulty concentrating, shortness of breath, headache, dizziness on standing, chest pain, cough, muscle pain, depression or anxiety. Long COVID can therefore, in and of itself, qualify as a disability under the ADA if the condition substantially limits one or more major life activities.
Employers and HR professionals with questions regarding compliance with the ADA, including reasonable accommodations, the interactive process and disability discrimination claim avoidance should contact their regular Saul Ewing LLP labor and employment law attorney for assistance.