The EEOC has filed a lawsuit in Georgia against an employer under the Americans with Disabilities Act (ADA) for its alleged failure to accommodate an employee who was seeking reasonable accommodations due to a medical condition that made her particularly vulnerable to COVID-19.
According to the Complaint, Ronisha Moncrief worked for ISS Facility Services, Inc., a Denmark-based workplace management company, as a health and safety manager at the Company’s facility in Covington, Georgia. The charge states that in the performance of her job duties, Moncrief had close contact with many employees and often shared a desk with co-workers. The complaint alleges that Moncrief has a pulmonary condition that causes her to have difficulty breathing and placed her at a greater risk of contracting COVID-19.
A Reasonable Accommodation Request
From March 2020 through June 2020, in an effort to mitigate the risk of COVID-19 exposure and infection, the Company required that all employees work remotely four days per week. The facility reopened in June 2020. Due to her condition, Moncrief requested a reasonable accommodation that would allow her to work remotely two days per week and to take frequent breaks while working onsite to lessen her risk of infection.
On July 20, 2020, ISS denied Moncrief’s request for accommodation despite the fact, according to the complaint, that ISS allowed other employees in Moncrief’s position to work from home.
Retaliation in Action
Three weeks later, Moncrief’s supervisor contacted Human Resources and recommended that Moncrief be removed and replaced due to performance issues. One month after that, Moncrief’s employment was terminated citing those performance issues. According to the complaint, Moncrief had not been warned that her performance placed her at risk for termination.
Moncrief filed a charge of disability discrimination with the EEOC alleging a failure by ISS to provide her with a reasonable accommodation for her disability. After finding reasonable cause to support the claim, the EEOC filed suit.
New Wrinkle in an Old Problem
Managing employees at higher risk for COVID-19 infections is a new wrinkle on an old problem. The old problem is responding to requests to permit employees to telework as a reasonable accommodation for a disability. An example would be an employee who has a desk job but whose mobility has been substantially compromised by a medical condition or accident.
The new wrinkle is the ever-changing risk analysis and lack of uniform standards for dealing with COVID-19 mitigation efforts.
Important Lessons Learned
Four lessons learned from this lawsuit are:
- Before responding to a telecommuting reasonable accommodation request, review in detail the EEOC’s Guidance on Telework as a Reasonable Accommodation.
- Keep in mind that if the employee had been telecommuting as part of a broad overall COVID-19 mitigation strategy, the employee can argue that telecommuting worked then, and therefore there is no reason that it cannot work now. If that is the case, do not deny the telecommuting request unless you can demonstrate that continuing the arrangement for this employee would create an undue hardship for the business.
- If other employees are allowed to telecommute, be certain that you can defend a decision to deny a request to telecommute from an employee with a disability, based either on the essential functions of the particular employee’s position or on recent performance concerns that make supervision of the employee on a remote basis difficult if not impossible.
- Never simply deny a request for a reasonable accommodation. Always offer the employee some accommodation. If telecommuting is not a reasonable option, offer some other less burdensome accommodation. In Moncrief’s case, for example, the employer could have provided (and perhaps they did provide) Moncrief with her own office or protected work cubicle and allowed her to meet with employees virtually via Zoom or Teams.
Summing it Up
COVID-19 has created several new issues for companies related to the EEOC’s Guidance on Telework as a Reasonable Accommodation in the era of COVID-19. Before denying a reasonable accommodation request from an employee – able-bodied or disabled – the company must ensure it is granting reasonable accommodations fairly and consistently across its population of employees. For more information on granting (or not) reasonable accommodations, contact Bill Egan at began@avisenlegal.com.
