At the onset of the COVID-19 pandemic, many employers had little choice but to transition to remote work arrangements to keep their businesses operating. Now that vaccines are widely available and infection rates have been dropping, many employers have instructed their employees to return to the office.

As I mentioned in last month’s column, work-from-home arrangements instituted during the pandemic have proven popular with many employees for a variety of reasons (no commuting time or related expenses, reduced risk of infection, elimination of any child-care expenses the employee might otherwise incur, etc.). These arrangements frequently result in happier employees and increased productivity, and in today’s tight and highly competitive labor market the option of working from home can be a valuable tool for retaining employees and attracting new ones.

Nevertheless, many employers have their own reasons for wanting their employees to work on-site. They may be concerned that employees will goof off or spend large chunks of the workday attending to kids and pets rather than focusing on their work. They may feel they’re unable to keep tabs on what employees are doing, or effectively monitor or distribute work when employees work remotely. Or they may simply prefer interacting with their employees face-to-face, rather than by e-mail, phone or video conference.

For many employees, the end of a remote work arrangement constitutes little more than the loss of a valued perk. However, for those employees who suffer from certain medical disabilities, being required to return to the office in the midst of a pandemic also poses potential risks to their health and safety. Accordingly, employers who wish to transition an employee who has requested an accommodation under the Americans with Disabilities Act (ADA) from remote work back to in-office work need to first evaluate whether doing so might constitute a violation of the law. A recent federal lawsuit filed by the Equal Employment Opportunity Commission (EEOC) on behalf of a terminated disabled employee illustrates the risk employers take if this analysis is not done correctly, or not done at all.

In EEOC v. ISS Facility Services, Inc., the EEOC brought suit on behalf of Ronisha Moncrief (Moncrief), a former ISS Facility Services (ISS) employee, alleging that the company violated the ADA by denying her request to work from home. Moncrief’s complaint alleges that she suffers from numerous physical impairments, including chronic obstructive lung disease and hypertension that affect her ability to breathe, stand, walk, run, work, and bend. After becoming ill at work on March 1, 2020 she was diagnosed with Obstructive Lung disease. Upon seeking medical attention, Moncrief’s doctor recommended that she work from home and take frequent breaks while working. Her doctor also completed ISS’s ADA Reasonable Accommodation Request Medical Certification Form, confirming Moncrief’s need for an ADA accommodation. Around this same time period, due to the COVID-19 pandemic, ISS placed its staff on work schedules where employees worked in the facility one day per week and from home four days per week.

On or about June 1, 2020, the Defendant directed all of its staff to return back to working at the facility five days per week, though some employees were allegedly allowed to continue working from home. Moncrief requested an ADA accommodation to work from home two days per week with frequent breaks while working on-site. The documentation Moncrief submitted noted that Moncrief needed the accommodation because her pulmonary disease made her a high-risk for contracting COVID-19, and her position required that she work in close proximity with other employees.

For reasons not mentioned in the complaint, ISS denied Moncrief’s accommodation request in July 2020. In August 2020 her supervisor recommended Moncrief’s termination based upon performance issues (though her complaint alleges she was never informed there were any such issues). Thereafter, in September 2020 Moncrief’s employment was terminated. The EEOC subsequently brought suit on her behalf seeking to recover, among other relief, compensatory damages, back pay, and punitive damages.

It remains to be seen how this newly filed case plays out, however there are lessons we can learn from a lawsuit of this type even in its early stages. First, whenever you are presented with an accommodation request it is important that the request and all supporting medical documentation be considered, carefully analyzed and discussed with the employee. Further analysis should be conducted by your corporate counsel and/or your human resources department before a decision is made. An accommodation is considered “reasonable” and must be granted if it does not pose an undue hardship for the employer, and it is always recommended that you err on the side of caution, and grant requests whenever possible.

Note that employers need not always give employees the exact accommodation they request. Employers may always choose a different and less burdensome and/or less costly accommodation than what has been requested, provided it effectively addresses the impediment to employment that prompted the request. In this case, given that ISS was seemingly happy to have Moncrief work at home four days per week during the height of the pandemic, her request in July to work two days at home and three days in the office with frequent breaks seems to have been a reasonable one.

Second, if the decision is ultimately made to deny an accommodation request, it is recommended that you have a solid reason for doing so. As I mentioned above Moncrief’s complaint does not mention the reason, if any, ISS gave for denying her accommodation request. My guess is that there may have been some underlying issues or animosity between Moncrief and her supervisor that resulted in a poorly thought-out, summary denial of her ADA request, followed by her termination. Given that Moncrief was previously allowed to work at home, coupled with the fact that other non-disabled employees were permitted to do so after June 1, 2020, the company will likely have a difficult time justifying its decision.

Third, it goes without saying that there is always great risk in terminating an employee who has sought to exercise their legal rights, such as requesting an ADA accommodation. Employment laws typically include potent anti-retaliation provisions, and employers who subject an employee who has asserted her rights to adverse employment action do so at their peril.

This is not to say once an employee requests an accommodation, they are completely immune from discipline or termination. An employee who requests an accommodation and subsequently embezzles funds, for example, can be terminated without running afoul of the ADA. In Moncrief’s case, the reason given for her termination was that she was supposedly a poor worker, but that was allegedly not conveyed to her until after she sought an ADA accommodation. It remains to be seen if ISS can back up its assertions with evidence (such as performance evaluations, warning notices, etc.), however it if can’t sufficiently do so, the company will likely be found to have retaliated against Moncrief by terminating her employment shortly after requesting and denying her request for an ADA accommodation.

Avatar
Article by Lawrence I. Cohen

Laurence I. Cohen is a partner with Pike, Tuch & Cohen, LLP, a Bellmore, NY-based law firm.

See All Articles