Dive Brief:

• A facility management company agreed to pay $47,500 to settle a U.S. Equal Employment Opportunity Commission lawsuit alleging that it refused to let a disabled employee at high risk for catching COVID-19 work part-time from home, in violation of the Americans with Disabilities Act, the agency announced Dec. 20 (EEOC v. ISS Facility Services, Inc., No. 21-0378 (N.D. Ga. Sept. 7, 2021)).
• The employee worked at a manufacturing plant in Georgia, according to court documents. Per the complaint, in March 2020, she was diagnosed with hypertension and obstructive lung disease, which caused her frequent coughing episodes and shortness of breath. From March to June 2020, due to COVID-19, employees worked on rotating schedules, one day at the plant and four days at home. After the company required them to return to the plant five days a week, the employee asked to work from home two days a week and for frequent breaks when she worked on-site, the EEOC alleged. She submitted documentation that her severe bouts with pulmonary disease put her at high risk for contracting COVID-19, particularly because she had close contact with many employees and often shared a desk with co-workers, the complaint alleged.
• The company denied the employee’s request, even though it allegedly let others in similar positions work from home, the EEOC said. Citing performance problems, the company fired her several weeks later, according to the complaint. The EEOC sued it for violating the ADA by denying her a reasonable accommodation and for firing her because of her disability and because she requested an accommodation. Under a two-year consent decree, in addition to paying the $47,500, the company will allow the EEOC to monitor how it handles future accommodation requests, the announcement said.

Dive Insight:

COVID-19 may have “forever changed” how teleworking is viewed as an accommodation under the ADA, but the ADA’s basic principles are still intact, an employee-side attorney noted during a November American Bar Association conference. It’s particularly important to keep that in mind now, she warned, because of “flexibility fatigue,” with exasperated managers demanding more boundaries and structure to hybrid and remote work. 

When an employer recalls employees back to the worksite, the ADA doesn’t require it to automatically grant an employee’s accommodation request to continue teleworking, according to the EEOC guidance on COVID-19, the ADA and the Rehabilitation Act. For example, if the employer can effectively address the need with another form of reasonable accommodation at the worksite, it can choose that alternative, the guidance says.

The starting point is the interactive process, where the employer and the employee engage in a “flexible, cooperative” exchange of information relevant to the request, the guidance points out. The employer is entitled to understand the disability-related limitation that requires remote work, and the interactive process is meant to help it understand this.

Also, employers don’t have to grant a request to work from home if it means removing essential job functions, the EEOC says. The interactive process helps the parties identify these functions, an EEOC Q&A on teleworking notes. For example, an essential function may require the employee to work in-person or on-site, a management-side attorney pointed out during the ABA conference.

Even as COVID-19 numbers subside, employers still need to be careful about the requests of employees who are immunocompromised and hesitant to return to the office, the employee-side attorney added.

This case is one that should create concern for employers now, an attorney told attendees at the Disability Management Employer Coalition’s annual conference in August, prior to the settlement. If an employee has been working remotely for any period of time, the employer will have a tough case denying their request for a reasonable accommodation to continue working remotely on the basis that all essential functions can’t be done, she said.