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Every Employer’s Nightmare: Denying remote work accommodation spurs EEOC lawsuit
By: Jane Harper
After the COVID-19 pandemic required employers to implement remote work plans (both to continue with their day-to-day operations and to comply with new state and government guidelines), many employers – and employment lawyers – have wondered what this improvement would mean for organizations’ commitment to allow employees to work from home as an accommodation to a disability in the future. The result? A first-of-its-kind case was filed last week by the
U.S. Equal Employment
DENYING REMOTE WORK ACCOMMODATION SPURS
Opportunity Commission (EEOC). Employers may now get a glimpse at EEOC’s attitude towards the future of work. What lessons can employers learn from this recent lawsuit?
THE FIRST
EEOC Files First PandemicRelated Remote-Work Bias Suit
The case, which was filed in federal court in Georgia, involves Ronisha Moncrief, a former health and safety manager for ISS Facility Services (ISS). In March 2020, at the start of the pandemic, she says she requested a reasonable accommodation to telework due to her chronic obstructive lung disease and hypertension. Not long after her request, the claim alleges that Moncrief suffered from multiple physical ailments including chronic obstructive pulmonary disease (COPD) and hypertension. After becoming ill and being diagnosed with COPD, Moncrief’s doctor recommended she work from home and take frequent breaks. At the start of the Covid-19 pandemic, ISS’s staff, including Moncrief, were working in the facility on modified work schedules, resulting in Moncrief and other employees working from home for four days per week. Although, in June 2020, ISS required all employees to return to work in-person at its facility five days per week. This is when Moncrief requested a reasonable accommodation to continue to work remotely two days per week and be allowed frequent breaks while working onsite.
The EEOC claims thatMoncrief
presented ISS with documentation indicating that her set of history of serious ailments and increased her risk of getting infected with COVID-19. The EEOC further claims that her work obligations required her to be in close contact with other employees and that other employees had been allowed to work from home following the June 2020 return of work.
While other HSE managers were allowed to continue to work remotely, ISS denied Moncrief’s request, and shortly thereafter, fired her.
(As per the lawsuit, ISSdenied Moncrief’s requested accommodation in July 2020. Subsequently, in August 2020, her boss then allegedly contacted HR recommending her termination based on performance. At the start of September 2020, the EEOC lawsuit claims that ISS fired Moncrief due to performancerelated issues. The EEOC claims that she had not been advised that her performance was reason of termination any time prior to her termination.)
What does the lawsuit mean to your operations?
The EEOC has always championed that telework requests be approved as an accommodation under the Americans with Disability Act (ADA). The EEOC is now attempting to use an employers’ previous work from home arrangements during the Covid-19 pandemic as proof that employees should have been allowed to accomplish the fundamental elements of their job role in a remote capacity. This gives perspective on probable factors that will be utilized against businesses who deny remote work demands.
How should you respond?
Apart from following regular protocols, you should give special regard to telework demands. It is possible that workplaces that have had the option to operate under telework arrangements will be expected to make remote work accessible as an accommodation in the near future. The contentions adopted by the EEOC will presumably be used by the agency and enterprising plaintiffs’ attorneys across the country to undermine the credibility of businesses that argue that work from home requests cannot be accommodated. If you determine that continued work from home will create a burden on your company operations, you should be able to articulate how that burden is to be understood.
1.
Albeit this claim is in its infancy, and ISS has not even yet had a chance to react to the EEOC’s charges, you can in any case take in certain lessons from the cases to limit risks at your company. The following are three tips for managers to consider considering this suit:
Review existing accommodationrequests for remote work:
While the lawsuit doesn’t give insights regarding the company’s response to the employee’s initial request for a reasonable accommodation. Permitting an accommodation to work remotely, likely any request for an accommodation, should be considered on a case-by-case basis. The EEOC’s position in this situation shows that an employer’s denial of such a solicitation will be investigated more closely going forward – especially if the employee in question teleworked for
a short period of time or if others have been allowed to continue to telework.
2.
Review job responsibilities and position descriptions:
The first and foremost step in determining whether an employee can fulfil their job responsibilities with a reasonable accommodation such as telework is to know unequivocally what the worker’s fundamental job duties are and how often they perform those tasks. Outdated job responsibilities or understandings of an employee’s actual job role can hamper this analysis. For instance, a task that requires continuous or daily vis-à-vis client or customer interaction may no longer be the expectation. Instead, the pervasiveness of meeting through any of the numerous videoconferencing tools that have proliferated over the past year may be more acceptable as a means of communication for clients or customers. Moreover, many businesses have had to provide employees with the tools and access needed to work remotely subverting arguments that doing so would represent an unjustifiable burden.
3.
Ensure that solicitations are being taken care of reliably:
As shown by the EEOC’s claims for this situation, proof that other workers – particularly those in the same or similar positions – have been permitted to work remotely or keep on working remotely might be significant proof that a business has abused its commitments under the ADA. In case you are challenged with more than one request for remote work as a reasonable accommodation, you should have the option to articulate why it can accommodate a few workers and not others. This might be for permissible reasons like information security or to be actually present to access or use equipment or products. Whatever the explanation, you should not adopt a blanket strategy to remote work demand and instead engage in a case-by-case assessment of each employee’s solicitation considering what was done during the Covid-19 pandemic.
We also advise employers to continuously monitor the developing legal landscape around pandemic-related remote work lawsuits. The oldest of the Covid-19 inspired lawsuit is only recently starting to yield judicial precedent that you can use to make decisions.
