EEOC Brings First Disability Pandemic Discrimination Case
The COVID-19 pandemic has led to an explosion in remote work, including for positions traditionally not considered eligible for remote work. As employers fired employees into office work environments, some employees who historically worked on-site have requested continued work from home as accommodation under the Americans with Disabilities Act (ADA). On September 7, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) filed its first lawsuit alleging that an employer discriminated against an employee with a disability by failing to accommodate her. by allowing work from home due to her increased risk of COVID-19 and terminating her employment.
ISS Facility Services, Inc., a provider of office maintenance and management services, has employed Ronisha Moncrief as “Environmental Health, Safety and Quality Officer” in one of its its manufacturing facilities. The complaint alleges that Moncrief suffers from “physical impairments, including chronic obstructive pulmonary disease and hypertension”. Around March 1, 2020, âMoncrief fell ill at work with fever, sweating and an uncontrollable coughâ; a few days later, she was diagnosed with obstructive pulmonary disease. Her doctor provided her with the ISS Facility Services âADA Reasonable Accommodation Request Medical Certification Formâ, recommending that she âwork from home and take frequent breaks while workingâ.
Around the same time, the COVID-19 pandemic caused ISS Facility Services to move its employees to a rotating schedule, under which employees, including Moncrief, “work.[ed] from home four days a week. ISS Facility Services has asked its staff to return to work five days a week at the office as of June 1, 2020.
Moncrief requested accommodation to work from home two days a week “with frequent breaks while working on site”. Due to his obstructive pulmonary disease, Moncrief is considered “at high risk of contracting COVID-19”. ISS Facility Services denied its accommodation request on July 20, 2020, although other managers were allowed to work from home.
A few weeks later, Moncrief’s supervisor ârecommends[ed] that Moncrief be removed and replaced due to “performance issues”. ISS Facility Services terminated Moncrief’s employment on or around September 11, 2020. The complaint alleges that Moncrief never received a warning that his performance was poor.
The EEOC complaint calls for several forms of redress, including a permanent injunction prohibiting ISS Facility Services from discriminating against employees “on the basis of disability” or against employees “who engage in a protected activity.” The complaint also asks the company to implement “policies, practices and programs that provide equal employment opportunity to all employees who perform a protected occupation” and to provide Moncrief with back wages, compensation for pecuniary and non-pecuniary losses and punitive damages.
Key points to remember
This case signals to employers that the EEOC is closely monitoring how employers treat remote work requests as reasonable accommodation under the ADA. The EEOC took the position that temporary remote work could be relevant for the consideration of homework applications if the period of temporary remote work demonstrated that the individual could satisfactorily perform all of the essential functions of the worker. job.
Under the ADA, if an employer receives information that an employee may be disabled, they have a duty to engage in the interactive process to determine if an accommodation is necessary. Employers may have a harder time establishing that telecommuting is not a reasonable accommodation if employees have worked from home during the COVID-19 pandemic. Employers may want to explain why essential functions were not being performed successfully from home, or how the role is different on-site than during the time the employee was working from home.
The case further emphasizes the importance of full documentation. While employers have the prerogative to fire an employee at any time, employers who have documented performance issues may be more able to demonstrate that negative actions were not causally related to a protected activity.
Â© 2021, Ogletree, Deakins, Nash, Smoak & Stewart, PC, All rights reserved.Revue nationale de droit, volume XI, number 274