Along with a new wave of post-COVID-19 litigation surfacing across the country, the Equal Employment Opportunity Commission (EEOC) has filed its first lawsuit against an employer for allegedly failing to accommodate and unlawfully terminating a disabled employee who had asked to work remotely because of the pandemic. 
Facts
Ronisha Moncrief was a health, safety, and environmental (HSE) quality manager for ISS Facility Services, which provides office maintenance and management help. She worked at a pharmaceuticals manufacturing facility in Newton County, Georgia.
In early March 2020, Moncrief was diagnosed with obstructive lung disease. Consequently, she requested a reasonable accommodation under the Americans with Disabilities Act (ADA), which included working from home and taking frequent breaks from the job. Meanwhile, during the COVID-19 pandemic, ISS modified the work schedule at her facility so all employees could work from home four days a week and rotate to be in-person at the site on the other day.
In or around June 2020, however, ISS began requiring staffers to return to the facility five days a week. In response, Moncrief again asked to work from home two days a week and take frequent rest breaks. At the time, she allegedly told the employer she required the accommodation because of the severe pulmonary disease diagnosis, which put her at high risk for contracting COVID-19.
The EEOC claimed Moncrief’s job required her to have close contact with many employees, including sharing a desk with coworkers. The agency also alleged she could perform all the essential job functions with the requested accommodation.
According to the complaint, ISS ultimately denied Moncrief’s accommodation request while permitting other managers with her same title to work from home. Approximately two months later, the employer terminated her over alleged performance issues. She claimed she hadn’t been given notice of the issues before the discharge and disputed whether they were the true reason for her separation.
EEOC’s Lawsuit
On September 7, 2021, the EEOC sued ISS in the U.S. District Court for the Northern District of Georgia, alleging violations of the ADA. The Act requires employers with 15 or more employees to provide a reasonable accommodation to bona fide disabled employees, so long as it wouldn’t create an undue hardship on the business operations.
The EEOC claimed ISS discriminated against Moncrief in violation of the ADA by denying her request for a reasonable accommodation and then terminating her because of her disability and in retaliation for engaging in protected activity. The employer has yet to respond to the complaint, and the suit remains pending in Georgia federal court. EEOC v. ISS Facility Services, Inc.
What Case Means for Employers
All industries are dealing with remote-work accommodation requests. Therefore, you should pay attention to Moncrief’s case and be prepared for many more such lawsuits to appear nationwide.
Employers are operating in unprecedented times because of the pandemic, and the case law is still unsettled regarding your obligations to honor telework requests triggered by COVID-19. Consequently, you should carefully evaluate any virus-related accommodation requests to determine what is reasonable. Before denying a request, you should:
- Have a well-documented interactive process to assess the potential disability accommodation;
- Avoid snap decisions about telework requests; and
- Use appropriate judgment under the law to determine what constitutes an undue hardship.
EEOC’s Guidance Can Help
The EEOC has provided COVID-19 guidance that courts are likely to consider strongly when evaluating any failure-to-accommodate claims related to the ongoing pandemic:
Less expensive solutions. You should first consider what low-cost solutions may help to prevent workplace exposure to COVID-19, including but not limited to using plexiglass and other barriers between staff, limiting direct interaction between employees and/or customers, requiring face masks and other enhanced personal protective equipment (PPE), and designating one-way aisles.
Temporary assistance. You should next look at whether marginal job duties can be restructured temporarily or the employee moved to an alternative position for a while (with the same terms and conditions of employment). You also could consider modifying the individual’s work schedule or location to reduce the likelihood of exposure to others in the workplace.
Permissible questions. You may ask questions to (1) confirm the employee has a disability, (2) inquire how the requested accommodation would assist her in performing the essential job duties, (3) explore alternative solutions that may work, and (4) obtain appropriate medical documentation in support of the request.
Undue hardship. When assessing whether a requested accommodation would cause an undue hardship for your business, you may consider whether current circumstances brought about by the pandemic create “significant difficulty” in providing for certain solutions. For example, it may be harder to (1) acquire certain items needed to accommodate teleworking employees or (2) hire temporary workers to make up some of the work for those who have been reassigned.
Major expenses. You also may consider whether the requested accommodation poses a significant expense compared to your overall budget and resources, particularly in light of any loss of income or reduced discretionary funds caused by the pandemic.
Final Note About Long COVID
As of September 9, 2021, the EEOC has noted individuals with “long COVID” may qualify as disabled under the ADA. According to the U.S. Department of Health and Human Services (HHS), long COVID refers to people who have new or ongoing virus symptoms for weeks or months after they were infected with the virus.
Long COVID’s symptoms can include (but aren’t limited to) tiredness or fatigue, difficulty concentrating, shortness of breath, headache, dizziness on standing, chest pain, cough, muscle pain, depression, or anxiety. If the condition substantially limits one or more major life activities, it can therefore qualify as a disability under the ADA.
Lisa M. Koblin is an attorney with Saul Ewing Arnstein & Lehr LLP in Philadelphia, Pennsylvania. You can reach her at lisa.koblin@saul.com.