EEOC Files First Pandemic Lawsuit Under Disability Law

The United States Equal Employment Opportunity Commission (EEOC) has filed a lawsuit against a provider of office maintenance services. It alleges that it violated federal disability law by refusing an employee’s request to telework even though it allowed others to work from home because of the pandemic.

The EEOC said in a news statement that the case represents the first pandemic lawsuit it has filed about a request for an accommodation under the Americans with Disabilities Act (ADA) related to COVID-19.

Employers must provide reasonable accommodations for those with disabilities.

The ADA requires that employers provide reasonable accommodations for workers with disabilities unless doing so creates an undue hardship for the employer.

“Denying a reasonable accommodation and terminating an employee because of her disability clearly violates the ADA at any time,” said Marcus G. Keegan, regional attorney for the EEOC’s Atlanta District Office.

“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,” Keegan continued.

EEOC pandemic lawsuit

ISS Facility Services, Inc. hired the plaintiff to be a health and safety environmental quality manager. She worked at the Takeda Pharmaceuticals manufacturing facility in Newton County, Georgia.

The employer discriminated against the worker when it denied her “reasonable request for an accommodation and terminated her employment because of her disability,” according to the complaint.

The EEOC also alleged that the employer retaliated against the manager for engaging in a legally protected activity.

Many federal and state laws provide protections for workers who engage in protected activity. This means that employers cannot take adverse action against employees who take advantage of their rights under a law. For example, making a reasonable request for an accommodation is a protected activity under the ADA.

The EEOC recently expanded its guidance on employer retaliation and the ADA in light of the COVID-19 pandemic.

Doctor’s note

The plaintiff’s physical impairments include chronic obstructive lung disease and hypertension, according to the complaint. As a result, the plaintiff’s doctor recommended that she work from home and take frequent breaks while working. The physician completed a reasonable accommodation request medical certification. He also wrote to the woman’s supervisor explaining that the plaintiff had limitations interfering with her job performance.

The “severe pulmonary disease” and “close contact” with employees required by the job placed the plaintiff at high-risk for contracting COVID-19, the EEOC said.

About the same time as the doctor made his recommendations, the company set up a telework schedule for employees because of the pandemic. The employees worked from home 4 days a week on a rotating basis. The plaintiff said the new work schedule helped her in managing her condition. However, starting in June, the company required its staff to return to a full-time “in the office” work schedule.

Request for accommodation

The plaintiff requested an accommodation under the ADA. She asked for permission to work from home 2 days a week with frequent breaks while working on site. Her request was denied even though other managers were allowed to continue to work from home, the EEOC said.

The plaintiff’s employment was terminated shortly after she requested the accommodation, the EEOC said. It also noted that the employer had not previously informed her of issues with her job performance.

The employer’s conduct in this case violates the ADA.

The federal agency says the employer’s conduct violates the ADA. The agency has asked for back pay, injunction and compensatory and punitive damages, among other things.

The case was filed in the United States District Court, Northern District of Georgia, Atlanta Division on Sept. 7.

The defendant filed a response on Nov. 22 denying the allegations. An attorney for the defendant declined to comment on the pending litigation.

Significance of the pandemic lawsuit

Attorneys for law firm Ogletree, Deakins, Nash, Smoak & Stewart, P.C. said the case “signals to employers that the EEOC is closely watching how employers handle requests to work remotely as a reasonable accommodation under the ADA.”

The EEOC has long taken the position that an employer must allow an employee with an ADA covered disability to work from home as a reasonable accommodation if the essential functions of the job can be effectively performed at home and working from home will not cause undue hardship, attorneys at Foley & Lardner LLP said.

“After the COVID-19 pandemic required many employers to implement remote work arrangements (both to continue their operations and to comply with state and federal regulations), many employers — and employment lawyers — have wondered how this development would impact businesses’ obligation to allow employees to work from home as an accommodation to a disability in the future,” the Foley Lardner attorneys continued.

“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,” according to Ogletree Deakins.

Pro tips

Legal experts have several suggestions for how employers can handle similar situations.

First, employers are free to refuse an employee’s request to telecommute. However, reasonable accommodations can include policy exceptions.

As an employer, you can refuse a request for remote work, but be careful not to violate the ADA.

Employers should be aware that the ADA favors an “interactive process” for determining employee accommodations. Courts have ruled against employers for not engaging in the “back and forth” necessary to decide on a worker’s reasonable accommodation.

Requests should be handled consistently. Allowing other employees to take advantage of the accommodation requested by another employee can be used as evidence that an employer has violated its obligations under the ADA.

Finally, employers should consider whether the requested accommodation poses an undue hardship for the employer. If the accommodation poses a hardship, the employer is free to reject the accommodation. However, in most instances, it’s advisable for the employer to come up with another suggestion for accommodation.