ISS Facility Services, Inc., is a Denmark-based workplace and facility management company. Ronisha Moncrief worked for ISS as a health and safety manager at its facility in Covington, Georgia. From March 2020 through June 2020, ISS required all its employees to work remotely four days per week due to the COVID-19 pandemic. In June 2020, when the facility reopened, Moncrief requested an accommodation to work remotely two days per week and take frequent breaks while working onsite due to her pulmonary condition that causes her to have difficulty breathing and placed her at a greater risk of contracting COVID-19. ISS denied Moncrief’s request and fired her soon thereafter. Moncrief took a disability discrimination complaint to the Equal Employment Opportunity Commission (EEOC), which, after failing to reach a conciliation between ISS and Moncrief, filed suit in U.S. District Court for the Northern District of Georgia, Atlanta Division. The EEOC claimed that other employees were provided with the same accommodation that Moncrief asked for.
Employers returning to workplace work settings after work from home setting due to COVID-19 can expect an uptick in lawsuits from employees claiming disability or harassment. During the worst of the COVID-19 epidemic, many employees got used to working from home and may find reasons not to return to the office. Employers can expect the most frequent complaint to be about accommodations. Employers can expect a back-and-forth argument between themselves and employees about the nature of accommodations for COVID-19 protection or disabilities. However, if the employee says that accommodations are needed because a spouse or family member is at risk for COVID-19 infection, the Americans with Disabilities Act (ADA) is not triggered and an employer may consider refusing the request. On the other hand, if the employee makes a claim because of their own condition, the ADA is implicated. If the employee cites a medical condition as the cause of their request for accommodation, the employer should consider taking steps to accommodate the employee or risk a lawsuit.
Moncrief’s suit serves as an example. She claimed a disability for herself and was denied her claim. This led to a lawsuit. The EEOC is seeking back pay, compensatory damages, and punitive damages for Moncrief, as well as injunctive relief to prevent future discrimination. Moncrief’s case represents the first lawsuit the EEOC has filed about a request for an ADA accommodation related to COVID-19.
According to a press release issued by the EEOC:
“The ADA requires employers to provide reasonable accommodations to employees with disabilities to ensure those with disabilities have an equal opportunity to work to their full ability,” said Marcus G. Keegan, regional attorney for the EEOC’s Atlanta District Office. “Denying a reasonable accommodation and terminating an employee because of her disability clearly violates the ADA at any time. In light of the additional risks to health and safety created by COVID-19, it is particularly concerning that an employer would take this action several months into a global pandemic.”
Furthermore, “Darrell Graham, district director of the Atlanta office, said, ‘The EEOC is committed to enforcing the ADA to protect the rights of such aggrieved employees.'”
Employers can negotiate with employees refusing to return from work from home because an accommodation is not met. Employers should beware of an employee’s claim of a medical reason for a disability claim, since that implicates the ADA. According to the EEOC
To be protected under the ADA, you must have, have a record of, or be regarded as having a substantial, as opposed to a minor, impairment. A substantial impairment is one that significantly limits or restricts a major life activity such as hearing, seeing, speaking, walking, breathing, performing manual tasks, caring for oneself, learning or working.
If an employee qualifies for a job by having the right degrees, licenses, and such and can perform the job with reasonable accommodation, the employer cannot discriminate against the employee. What is reasonable accommodation?
Reasonable accommodation is any change or adjustment to a job or work environment that permits a qualified applicant or employee with a disability to participate in the job application process, to perform the essential functions of a job, or to enjoy benefits and privileges of employment equal to those enjoyed by employees without disabilities.
Reasonable accommodation includes:
- “providing or modifying equipment or devices,
- job restructuring,
- part-time or modified work schedules,
- reassignment to a vacant position,
- adjusting or modifying examinations, training materials, or policies, providing readers and interpreters, and
- making the workplace readily accessible to and usable by people with disabilities.”
Employers asked for an accommodation can consider three alternatives: (1) allowing the employee to work from home (the question of who pays for at-home accommodations remains unresolved), (2) deciding whether the worker has a disability, and (3) accommodating the employee. If an employer has allowed an employee to work from home for some time, the alternatives can be complicated by that fact. The employer may have to consider whether the employee’s essential duties were covered while the employee worked remotely. If the essential duties were performed remotely, the employer may consider letting the employee continue to work at home, especially if the employee has been receiving good performance reviews.
On the other hand, if the performance reviews indicate that the employee has been performing some but not all of their essential functions, a return to the office may be warranted. Employers should strive for consistency, as the alleged inconsistency in Moncrief’s case shows. Employees in similar situations should receive similar rulings on whether to return to the office. Employers should also keep private any decision to allow an employee to work from home because of a disability. Other employees do not need to know another employee’s medical information. If asked, an employer can say that it is private information.
For the first but likely not the last time, someone has sued an employer for a violation of the ADA relating to COVID-19 protection. Employers should be aware of the conditions under which they may be sued for disability discrimination and make consistent decisions regarding who must return to the office and who may continue to work remotely.