October 18, 2021

Volume XI, Number 291

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October 18, 2021

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Another Type of COVID Long Haul—Future Discrimination Suits?

We’ve been talking a lot about COVID-19 lately and, in particular, the various regulations and guidance that have come out regarding an employer’s day-to-day responsibilities: Can you require employees to take the vaccine? What kinds of medical questions can I ask my employees? Should employees still wear masks? How does COVID-19-related leave work? What do I do about accommodation requests?

With all of the technical guidance out there and the adjustments you’ve had to make, it may have been easy to forget about the big picture and what all these regulations may yield in the future: discrimination claims. Recently, the EEOC filed suit in the U.S. District Court in the Northern District of Georgia on behalf of an employee, claiming that her employer violated the Americans with Disabilities Act (ADA) when it denied her request to work from home. While today’s COVID-19 focus still centers around regulatory compliance and the pandemic’s daily effects, this lawsuit is a reminder that the effects of COVID-19 may last longer than we think and that they may start to infect discrimination suits.

The Lawsuit

The EEOC’s allegations in the complaint are as follows: The plaintiff employee, Ronisha Moncrief, worked as a Health, Safety, and Environmental Quality manager for ISS Facility Services, Inc. She has chronic lung disease and hypertension, which inhibit her ability to walk and breathe, limit the functions of her pulmonary and cardiovascular systems, and cause her to cough and have shortness of breath. In March 2020, ISS, like many others, directed its employees to work from home due to the COVID-19 pandemic. Around that same time, Moncrief’s doctor recommended that she work from home and take breaks while working.

The EEOC claims that working from home improved Moncrief’s condition and symptoms. However, in June 2020, ISS directed employees to return to work. The EEOC alleges that Moncrief requested to continue working from home for two days each week and to take frequent breaks while working on site. The documentation that Moncrief submitted with her request “noted that Moncrief needed the accommodation because her past and recent bouts with severe pulmonary disease made her a high-risk for contracting COVID-19. In the performance of her job duties, Moncrief had close contact with many employees and often shared a desk with co-workers.” The EEOC then claims that her request was denied and that she was terminated a few weeks later for performance issues. Notably, the EEOC claims that other employees’ requests to work from home were granted.

The Law

The EEOC requires that employers provide employees who have disabilities with a reasonable accommodation. This does not mean that you must provide an employee with the exact accommodation he or she requests. Instead, it is a very fact-specific inquiry that depends on the employee’s condition, your workplace environment, the job position requirements, and business need. Thus, under the ADA, leave or remote work is not a required accommodation. In fact, a few high courts have held that on-site attendance was an essential function of the job. One noted that in-person attendance at work is a “rather common-sense idea,” and another noted that “most jobs require the kind of teamwork, personal interaction, and supervision that simply cannot be had in a home office situation.”

However, the EEOC has been pushing in the other direction for some time, arguing that remote work and leave can be reasonable accommodations in certain circumstances. With many employers having offered remote working options for some time during COVID-19, plaintiffs have somewhat of an easier argument that working from home could be reasonable.

Takeaways

We are beginning to see discrimination suits that, like the one here, allege discrimination (whether it be racial, sexual, disability-related, or otherwise) due to an employer’s failure to grant a COVID-19-related request. A popular allegation is that the employee’s request was denied but that other employees, outside of the employee’s protected class, made similar requests that were granted. Be sure that you apply your policies, protocols, and practices equally to all employees who make COVID-19-related requests. Otherwise, you could be opening yourself up to discrimination claims.

When an employee brings an accommodation request to you, whether it’s due to a disability or sincerely held religious belief, remember to always engage in the interactive process. Discuss the employee’s requested accommodation and why it will or will not work. Work together to come up with an accommodation that will work for everyone, and remember that you are only required to give reasonable accommodations, not any accommodation an employee requests. It remains to be seen whether courts will begin to agree with the EEOC’s argument here – that allowing employees to work from home may be a reasonable accommodation.

© 2021 Bradley Arant Boult Cummings LLPNational Law Review, Volume XI, Number 285
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About this Author

Sarahanne Y. Vaughan Labor and Employment Attorney Bradley Arant Boult Cummings Birmingham
Associate

Sarahanne Vaughan is an associate in Bradley’s Labor and Employment Practice Group.

Sarahanne received her J.D. (cum laude) from Wake Forest School of Law, where she served as articles editor for the Wake Forest Journal of Law and Policy. She also earned the Dean Suzanne Reynolds Award for both Employment Discrimination and Constitutional Law. Sarahanne earned a degree in Political Science from Rhodes College.

205-521-8629
Anne R. Yuengert Employment Attorney Bradley Birmingham
Partner

Anne Yuengert works with clients to manage their employees, including conducting workplace investigations of harassment or theft, training employees and supervisors, consulting on reductions in force and severance agreements, drafting employment agreements (including enforceable noncompetes) and handbooks, assessing reasonable accommodations for disabilities, and working through issues surrounding FMLA and USERRA leave. When preventive measures are not enough, she handles EEOC charges, OFCCP and DOL complaints and investigations, and has handled cases before arbitrators...

205-521-8362
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