The U.S. Equal Employment Opportunity Commission (EEOC) has long taken the position that an employer must allow an employee with an Americans with Disabilities Act (ADA) covered disability to work from home as a reasonable accommodation if the essential job functions can be effectively performed at home, and working from home will not cause undue hardship. Some jobs, naturally, cannot be performed at home, e.g., assembly-line worker, waiter, cashier, etc.
In what is sure to be a closely watched case, the EEOC recently filed its first ADA pandemic-related lawsuit relating to COVID-19 and an employee’s request to work from home. The EEOC claims that ISS Facility Services, Inc. (“the Company”), a workplace experience and facility management company, unlawfully denied an employee’s reasonable request for an accommodation for her disability and then fired her because of her disability and in retaliation for requesting an accommodation. In a press release announcing the lawsuit, the EEOC stated, “[d]enying a reasonable accommodation and terminating an employee because of her disability clearly violates the ADA at any time. 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.”
According to the lawsuit, the employee, who has chronic obstructive lung disease and other physical impairments, worked as a Health, Safety & Environmental Quality Manager at a company facility in Social Circle, Georgia. Beginning in March 2020 and through June 1, 2020, the Company required all of its employees to work remotely four days per week due to the COVID-19 pandemic. Beginning June 1, 2020, the Company required all employees to return to working five days per week. The employee then requested an accommodation to work from home two days per week and to take frequent breaks while working onsite due to her pulmonary condition, which made her high-risk for contracting COVID-19. Although the Company allowed others in the same position to work from home, it denied the employee’s request and, shortly thereafter, fired her.
Generally, an employer is not required to provide an employee with the specific accommodation requested, but may offer alternative accommodations, so long as the accommodation provided is effective, which should be discussed during the ADA interactive process to determine whether there are alternatives to, for example, working from home, e.g., proper social distancing. Unless a job indisputably cannot be performed at home, employers should engage in the ADA interactive process to determine whether working from home is a reasonable accommodation that does not pose undue hardship, and whether any alternative accommodations would be effective.
The COVID-19 pandemic has demonstrated in many instances that certain positions not previously seen as remote positions can be effectively performed at home, creating a renewed focus on and need to reassess the reasonableness of such requests. Employers managing such requests should consult with their employment counsel for guidance.