The EEOC has now brought its first lawsuit against an employer for allegedly failing to accommodate and unlawfully terminating a disabled employee who had requested to work remotely due to COVID-19. In this case, EEOC v. ISS Facility Services, Inc., the EEOC brought suit on behalf of a former ISS Facility Services (“ISS”) employee alleging various violations of federal employment law.

Factual Background

The employee worked as a Manager at the ISS pharmaceuticals manufacturing facility in Newton County, Georgia. In early March 2020, the employee  was diagnosed with obstructive lung disease. Due to this condition, the employee requested a reasonable accommodation under the Americans with Disabilities Act (“ADA”), which included working from home and taking frequent breaks from working.

Due to the COVID-19 pandemic, the employer initially allowed all employees to work from home. However, in June 2020, the employer required its staff to return to work five days per week. In response, the employee again requested to work from home two days per week, with frequent rest breaks, and advised the employer that she required this accommodation due to her diagnosis of severe pulmonary disease, which made her high-risk for contracting COVID-19. It appears the employee’s management position required her to have close contact with many employees, including sharing a desk with her co-workers.

The employer denied the employee’s  accommodation requests and later terminated the employee due to alleged performance issues.

On September 7, 2021, the EEOC brought suit against the employer alleging violations of the ADA for denying the employee’s reasonable accommodation requests and then terminating the employee.  The ADA requires employers, with 15 or  more employees,  to provide reasonable accommodations to disabled employees so long as the accommodations would not create an undue hardship on the employer’s operations.

What Does This Case Mean for Employers?

Employers are operating in unprecedented times due to the COVID-19 pandemic and the case law is still unsettled regarding employer obligations to honor requests due to COVID-19. However, employers should carefully evaluate any accommodation requests related to COVID-19 to determine what is reasonable and maintain a well-documented interactive process to assess the employee’s accommodation requests.

The EEOC has provided COVID-19 Guidance that courts are likely to consider when evaluating any failure to accommodate claims related to the ongoing pandemic. According to the EEOC’s guidance on ADA accommodations during the pandemic:

• The employer should first consider what low-cost solutions may help to prevent exposure to COVID-19 in the workplace such as using plexiglass between staff, limiting direct interaction between employees and/or customers, requiring face masks and PPE, etc.
• Employers should next consider whether it is possible to temporarily restructure marginal job duties, temporarily transfer the employee to an alternative position (with the same terms and conditions of employment), or modify the employee’s work schedule or work location to reduce the likelihood of exposure to others in the workplace.
• The employer may ask permissible questions to confirm that the individual has a disability, inquire how the requested accommodation would assist the employee in performing the essential duties of their position, explore alternative accommodations that may effectively meet the employee’s needs and obtain appropriate medical documentation in support of the request.
• When assessing whether a requested accommodation would cause an undue hardship on an employer’s business, the employer may consider factors such as whether current circumstances brought about by the pandemic create “significant difficulty” in providing for certain accommodations.
• The employer may also consider whether the requested accommodation poses a significant expense compared to the employer’s overall budget and resources, particularly in light of any loss of income or reduced discretionary funds due to the COVID-19 pandemic.
• If the requested accommodation would cause an undue hardship on the business, the employer and employee should work together to determine if there is a reasonable alternative to the original request.

As we recently reported, employers should also be aware that, as of September 9, 2021, the EEOC has clarified that individuals with Long COVID may qualify as disabled under the ADA. See, https://yorkbowmanlaw.com/long-covid-and-the-ada

For assistance with ADA compliance, contact the attorneys at York Bowman Law, LLC.