The EEOC filed a lawsuit against a facility management company, ISS Facility Services, Inc., for allegedly refusing to allow disabled employees who were at high-risk for contracting COVID-19 to work remotely. This conduct was alleged to be a violation of the Americans with Disabilities Act (ADA). The company agreed to settle the case for $47,500.
Factual Background
According to the Complaint filed by the EEOC, an employee at ISS Facility Services had been diagnosed with obstructive lung disease, which causes frequent coughing and shortness of breath. During the pandemic, from March to June 2020, she was allowed to work part time from home, as were all other employees. Eventually, the company required all employees to return in-person to the plant full-time.
At that point, the employee submitted documentation from her healthcare provider regarding her disability which put her at high risk for contracting COVID-19. This was especially true because working in-person at the plant would have required her to be in close proximity to numerous employees and even share a desk with others. The employee only asked to be allowed to work from home two days a week and to take frequent breaks when she was working at the plant.
Despite the fact that she had performed her job duties from home during the pandemic, the company denied her request. It was also alleged in the EEOC’s complaint that other employee who worked similar positions were still allowed to work from home. A few weeks after the employee made her request for an accommodation, she was terminated. The EEOC’s complaint alleged that she was terminated because of her disability and in retaliation for requesting an accommodation.
In addition to settling the case for $47,500, the company entered into a two-year consent decree which requires it to submit to monitoring by the EEOC of its handling of future accommodation requests.
The Future of Teleworking Post-Pandemic
Although the pandemic has had some effect on the issue of accommodations under the ADA, it has not altered it’s basic principles. The issue that seems to arise from an employer standpoint is often referred to as “flexibility fatigue,” referring to managers who are less willing to provide the type of flexibility in work schedules and work environments that the pandemic has led to. Many supervisors are now seeking to enforce more structure to hybrid and remote work and that can lead to conflicts with employees’ legal right to reasonable accommodations.
How to Handle Recalling Employees to the Worksite
The ADA does not require employees to systematically provide accommodations to employees who ask to continue working remotely. If there are alternative accommodations, an employer can offer those. The first step should always be engaging in the interactive process required by the ADA. This process basically involves engaging with the employee in a conversation and exchange of information in order to understand the needs of the employee.
It is also important to remember that an employer is not required to allow an employee to work remotely if that employee’s essential job duties would not allow it. Determining whether that is the case is part of the interactive process. However, as this case filed by the EEOC demonstrates, it becomes more difficult to argue that an employee cannot perform their essential job functions remotely after they have done so for a period of time during the pandemic.