Thursday, October 7, 2021

Coronavirus Update 10-7-21: EEOC brings its first pandemic-related lawsuit over a denied WFH accommodation

The fact that an employer temporarily excused performance of one or more essential functions when it closed the workplace and enabled employees to telework for the purpose of protecting their safety from COVID-19, or otherwise chose to permit telework, does not mean that the employer permanently changed a job’s essential functions, that telework is always a feasible accommodation, or that it does not pose an undue hardship. These are fact-specific determinations.

EEOC's What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws

According to the EEOC, just because an employer previously offered remote work during the pandemic for some or all employees does not mean that remote work is an appropriate accommodation for any specific employee after it recalls employees to the physical workplace.

What does this look like in practice? A lawsuit the EEOC recently filed will test its limits.

According to the EEOC's suit, Ronisha Moncrief worked for ISS as a health and safety manager. She also has a pulmonary condition that causes her to have difficulty breathing and placed her at a greater risk of contracting COVID-19. From March 2020 through June 2020, ISS required all of its employees to work remotely because of Covid-19. In June 2020, when the facility re-opened, Moncrief requested an accommodation to work remotely because of her pulmonary condition. Although ISS allegedly allowed other employees in Moncrief's position to continue working from home, it denied Moncrief's request and fired her shortly thereafter for "performance issues."

As an employer, here are your key takeaways. Under the ADA, an employer has an obligation to engage in the interactive process with a disabled employee over an appropriate reasonable accommodation to enable the employee to perform the essential functions of his or her job. If remote work previously worked, before denying it as a continued or further accommodation to an employee, you better: (1) have actually engaged in a meaningful discussion with that employee; (2) have documentation as to why it's no longer feasible for that employee; and (3) have a reasonable explanation as to why other similarly situated employees are permitted to continue working remotely (if any). Otherwise, you risk finding yourself on the receiving end of a difficult, dangerous, and expensive lawsuit.