As vaccination rates increase and the COVID-19 pandemic (hopefully) subsides, many employers have instructed their employees to return to in-person work. But is that the right call for all employees? In one recent case, the U.S. Equal Employment Opportunity Commission (EEOC) has said no.
Factual Background1
On September 7, 2021, the EEOC filed suit in the Northern District of Georgia against ISS Facility Services, Inc. (ISS), a facility management services company. EEOC v. ISS Facility Services, Inc., No. 1:21-CV-3708-SCJ-RDC (N.D. Ga. 2021). ISS employed Ronisha Moncrief as a Health Safety and Environmental Quality manager in its Georgia office. In early March 2020, Ms. Moncrief was diagnosed with obstructive lung disease. Her doctor recommended that she work from home and completed ISS's ADA Reasonable Accommodation Request Medical Certification Form.
As the COVID-19 pandemic hit the United States, ISS — like many employers — instructed its employees to work from home. A few months later, in June 2020, ISS required all employees to return to the physical workplace. Ms. Moncrief's job duties in the workplace included close contact with many employees and sharing a desk with others. As a result, Ms. Moncrief requested an accommodation pursuant to the American with Disabilities Act (ADA). She sought permission to work remotely two days per week and for frequent breaks while working onsite because her lung disease put her at high risk of contracting COVID-19. ISS allegedly denied Ms. Moncrief's accommodation request and, two months later, terminated her employment, citing "performance issues."
The EEOC's suit followed, alleging that ISS failed to accommodate Ms. Moncrief's disability and retaliated against her for seeking a disability accommodation. The EEOC seeks a permanent injunction enjoining defendant ISS from discriminating against disabled employees and monetary damages for back pay, past and future pecuniary losses, inconvenience, emotional pain and suffering, and punitive damages.
Takeaways for Employers
One takeaway from the ISS suit is that, according to the EEOC, telework may be here to stay for employees with qualifying disabilities. The COVID-19 pandemic forced many employers to allow their employees to telework on a full-time basis. As a result, employers may find it more difficult to credibly claim that telework is not a reasonable accommodation for employees with qualifying disabilities.
Another takeaway is that the EEOC may consider the risk of contracting COVID-19 as a disability that must be accommodated by an employer. Ms. Moncrief's lung condition did not prevent her from performing her essential job duties. Instead, according to the EEOC complaint, her lung condition presented a heightened risk of her contracting COVID-19. The EEOC claims that heightened risk of a COVID-19 infection entitled Ms. Moncrief to an accommodation, and in her case, a telework arrangement. Relatedly, the EEOC has clarified that individuals with "long COVID" may qualify as disabled under the ADA. For more information regarding "long COVID," please see our previous article.
What Should Employers Do Now?
In light of the above, employers should consider the following proactive measures to limit their risk of a disability lawsuit.
- Edit Job Descriptions. Employers should review their written job descriptions to ensure that the descriptions accurately set forth employees' job duties. For roles that require in-person work, the job descriptions should explain why. Well-drafted job descriptions are often a helpful exhibit for defending an employer's refusal to allow telework on the basis that teleworking would prevent the employee from performing the primary job duties and/or pose an undue burden to the employer.
- Edit Telework Policies. Employers should also review their telework policies. A well-drafted telework policy should notify employees that teleworking is not intended to be permanent and that the employer may rescind permission to telework at a later time. Where appropriate in light of an employee's job duties, a telework policy should also remind the employee that one or more of the employee's job duties requires the employee to be physically present at the job site.
- Review Current Telework Arrangements. When it comes to disability discrimination claims, exceptions to rules often spell trouble for employers. Does your organization permit some but not all employees to telework? If so, are those distinctions based upon job duties? Employers should review whether they are consistently enforcing their return-to-work policies.
- Review Disability Accommodation Procedure. Ensure the process is interactive and has a single reviewer, if feasible. Employers must review each accommodation request on a case-by-case basis and have legitimate reasons as to why one individual's accommodation request to work from home was approved while another individual's request was not approved.
We will continue to monitor all developments in EEOC v. ISS Facility Services, Inc. If your organization has any questions about this case, ADA accommodation requests, or any other COVID-19-related employment matter, please feel free to contact the authors of this alert or any other attorney in Venable's Labor and Employment Group.
[1] All facts herein are as alleged in the Complaint filed in EEOC v. ISS Facility Services, Inc., No. 1:21-CV-3708-SCJ-RDC (N.D. Ga. 2021). Nothing herein should be construed as a statement about the truth or falsity of any of the factual allegations.