After the COVID-19 pandemic forced many employers to implement remote working arrangements (both to continue their operations and to comply with new state and federal regulations), many employers and legal lawyers have wondered how this development would impact the obligation of companies to allow employees to work from home as an accommodation to a disability in the future.
Following a one-of-a-kind case filed by the U.S. Equal Employment Opportunity Commission (EEOC), employers may soon get a glimpse of the administrative body’s attitude toward the future home working arrangements.
Here are the lessons employers can learn from the September 7 trial.
Alleged denial of the request leads to litigation
The case, which has been filed in federal court in Georgia, involves a former health and safety official for ISS Facility Services. In March 2020, at the start of the pandemic, she said she requested accommodation to work from home two days a week as accommodation for her chronic obstructive pulmonary disease and hypertension. Shortly after her request, the lawsuit alleges that ISS placed its staff on modified work schedules where employees worked from home four days a week. However, in June 2020, ISS asked all staff to return to work in person at their facilities five days a week.
After the company asked employees to return to work, the complainant said she reiterated her request to the human resources department for her to be allowed to work from home two days a week as accommodation in accordance with the Human Resources Act. Americans with Disabilities (ADA). The EEOC alleges that the complainant provided ISS with documents indicating that her history of heart problems increased her risk of COVID-19. The EEOC further alleges that his duties generally required him to be in close contact with other employees and that other employees were allowed to work from home after the return to work in June 2020.
According to the lawsuit, ISS rejected the complainant’s request to work from home in July 2020. Subsequently, in August 2020, her supervisor then recommended her dismissal based on her performance. In September 2020, the lawsuit alleges that ISS fired the complainant for performance issues. The EEOC alleges that she was not informed that her performance was grounds for termination at any time prior to her termination.
What does this mean for your operations?
Even before the pandemic, the EEOC historically advocated that work-from-home applications be granted as accommodation under the ADA. As expected, the EEOC is now attempting to use an employer’s previous remote work agreements during the COVID-19 pandemic as evidence that employees should have been allowed to continue performing essential job functions remotely. . This gives a perspective on the likely attack vectors that will be used against employers who deny remote work requests.
What should you do
In addition to following regular interactive process protocols, you should pay special attention to remote work requests. It is possible that workplaces that have been able to function effectively under remote arrangements may be expected to offer remote work as accommodation in the future. The arguments adopted by the EEOC will no doubt be used by the agency and lawyers for enterprising plaintiffs across the country to undermine the credibility of employers who argue that demands for remote work cannot be met. If you determine that continuing to work remotely will create an undue burden on your operations, you should be able to explain how this burden is to be understood.
While this lawsuit is in its infancy and ISS has not even had a chance to respond to the EEOC allegations yet, you can still learn from the allegations in order to minimize the risk to your organization. Here are three tips employers should consider in light of this litigation.
1. Review existing accommodation requests.
While the lawsuit does not provide details of the employer’s response to the employee’s initial accommodation request, it would be wise to consider any pending request for remote work as an accommodation. The provision of accommodation for remote work, like any request for accommodation, should be considered on a case-by-case basis.
The EEOC’s position in this case indicates that an employer’s denial of such a request will be more closely scrutinized in the future, particularly if the employee in question has been working remotely for some time or if others were allowed to continue working remotely.
2. Review the duties and job descriptions.
The first step in determining whether an employee can perform their tasks with a facility such as remote working is knowing precisely what the employee’s essential tasks are and how often they perform those tasks.
Outdated job descriptions or an understanding of an employee’s actual duties can hamper this analysis. For example, a job that requires frequent or daily face-to-face interaction with a client or client may no longer be an expectation. Instead, the prevalence of meeting through one of the many video conferencing platforms that have flourished over the past year may be a more acceptable form of communication for many clients or clients. Additionally, many employers have had to provide employees with the necessary equipment and access to work remotely, which in many cases undermines any argument that it would constitute an undue burden.
3. Make sure requests are handled consistently.
As the EEOC’s allegations in this case demonstrate, evidence that other employees, especially those in the same or similar positions, have been allowed to work remotely or continue working remotely may constitute considerable evidence. that an employer has violated its obligations under the ADA.
If you are faced with more than one request for remote work as an accommodation, you should be able to adequately explain why it can accommodate some employees and not others. This can be for legitimate reasons such as data security or to be physically present to access or use equipment or products. Whatever the reason, it seems clear that, in most cases, you should no longer take a holistic approach to work-from-home requests and instead engage in a case-by-case assessment of each employee’s request on the job. light of what was done during the COVID-19 pandemic.
Employers should also continue to monitor the changing legal landscape around COVID-19 discrimination lawsuits. The oldest of COVID-19-inspired litigation has only recently started to produce a court precedent that you can use to inform your decisions.
George A. Reeves III is a lawyer with Fisher Phillips in Columbia, SC Ben Carney is a lawyer with Fisher Phillips in San Diego. Â© 2021 Fisher Phillips. All rights reserved. Republished with permission.