EEOC Files First COVID-19 Remote Work Discrimination Lawsuit

As we all know, the COVID-19 changed many parts of our lives, which obviously includes our work lives.  One of the most significant changes was the explosion of remote work in many segments of the economy.  Now, as employers are returning employees to office work, some employees who historically worked on-site have requested continued work from home as an accommodation under the Americans with Disabilities Act (“ADA”).

On September 7, 2021, the U.S.  Equal Employment Opportunity Commission (“EEOC”) brought its first lawsuit in connection with such a request.  The EEOC filed its complaint in Atlanta, Georgia, alleging that ISS Facility Services, Inc., discriminated against Ronisha Moncrief (“Moncrief”) when it denied her reasonable request for an accommodation and terminated her employment because of her disability and in retaliation for engaging in a protected activity.

Background

ISS Facility Services, Inc., which provides office maintenance and management services, employed Moncrief as a “Health Safety & Environmental Quality Manager” in one of its manufacturing facilities.

Around March 1, 2020, at the very beginning of the U.S.’s battle with the pandemic, “Moncrief became sick while at work with a fever, sweats, and an uncontrollable cough”, and experienced shortness of breath, lack of energy, fatigue, difficulty breathing, and extreme chest discomfort.  Shortly after, Moncrief was diagnosed with obstructive lung disease and hypertension.” Moncrief informed her supervisor and the Facility Manager about her condition via text and email, and then took two vacation days from work to seek medical attention.

After seeking medical attention, Moncrief’s doctor recommended that she work from home and take frequent breaks while working.  Her doctor also completed ISS Facility Services’ ADA Reasonable Accommodation Request Medical Certification Form and wrote that Moncrief has limitations in major life activities interfering with her job performance, including frequent coughing episodes and shortness of breath with activity.

Around the same time, the COVID-19 pandemic caused ISS Facility Services to move its employees to a rotational schedule where its employees, including Moncrief, worked from home four days per week.  That program ended on June 1, 2020, when ISS Facility Services required its staff to resume working five days per week in the office once again.

After the announcement, Moncrief requested an accommodation to work from home two days per week “with frequent breaks while working on-site.” In the documentation, Moncrief submitted she noted that she needed the accommodation because her past and recent bouts with severe pulmonary disease made her a high-risk for contracting COVID-19.  In the performance of her job duties, Moncrief had close contact with many employees and often shared a desk with co-workers, which was an issue, because due to her obstructive lung disease, Moncrief is considered “high-risk for contracting COVID-19.”

ISS Facility Services denied her accommodation request on July 20, 2020, though other managers were permitted to work from home.

About six weeks later, Moncrief’s supervisor “recommend[ed] that Moncrief be removed and replaced due to ‘performance issues.’ “ISS Facility Services terminated Moncrief’s employment on or about September 11, 2020.  The complaint alleges that Moncrief never received a written or verbal warning that her performance was deficient.

The EEOC’s Complaint

The EEOC’s complaint requests multiple forms of relief, including a permanent injunction enjoining ISS Facility Services from discriminating against employees “on the basis of disability” or against employees “who engage in protected activity.” The complaint also requests that the company implement “policies, practices and programs which provide equal employment opportunities for all employees who engage in a protected activity” and provide Moncrief with back pay, compensation for pecuniary and nonpecuniary losses, and punitive damages “for its malicious and reckless conduct”.

Key Takeaways

This case should be a signal to employers that the EEOC is closely monitoring how employers handle requests to work remotely as a reasonable accommodation under the ADA.  Further, the EEOC has taken the position that if an employer permits its employees to temporarily work remotely, and during that time, the employees were able to satisfactorily perform all the essential functions of the position, then that should be a relevant consideration to future requests to work remotely.

Under the ADA, if an employer is provided with information that an employee may be disabled, it has a duty to engage in the interactive process to determine whether an accommodation is necessary.  Employers may have a harder time establishing that telework is not a reasonable accommodation if employees have been working from home during the COVID-19 pandemic.  Employers may want to outline why the essential functions were not being performed successfully from home, or what about the role is different on-site than during the time the employee was working from home.

Finally, this case highlights the importance of thorough documentation.  Even for at-will employees, it is always a good practice to document performance concerns.  That way, if ever required, the employer may be more able to demonstrate that adverse actions were not causally related to protected activity.