This fall, the Equal Employment Opportunities Commission (the “EEOC”) filed a complaint against a San Antonio-based workplace experience and facilities management company, alleging that the Defendant company had illegally denied its employee’s request to work from home to protect itself from COVID-19. This lawsuit, which is the first of its kind from the EEOC, reminds employers of the legal issues and potential risks associated with the development and application of remote work policies.
In EEOC c. ISS Facility Services, Inc., 1: 21-cv-03708 (ND Ga. 2021), the employee worked as a health and safety officer at the defendant’s facility in Covington, Georgia. Towards the start of the pandemic, from March 2020 to June 2020, the defendant asked all employees to work remotely four days a week. In June 2020, the defendant reopened their facility and the employee requested accommodation to work remotely two days a week and take a series of on-site breaks due to lung disease. The employee alleged that the condition caused her difficulty in breathing and put her at an increased risk of contracting COVID-19. The EEOC alleged that although the Respondent allowed other people in the Employee’s position to work remotely, it nevertheless denied the Employee’s request. Following the refusal, the defendant dismissed the employee for “performance problems”.
The EEOC alleges that the Respondent’s actions violated the Americans with Disabilities Act of 1990, as amended, and Title I of the Civil Rights Act of 1991. After failing to reach an agreement with the Respondent, the EEOC brought an action for reimbursement of wages, compensatory damages, punitive damages and injunctive relief. This case remains in the very early stages of litigation, with the defendant filing its response in November 2021.
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Employers, and those who represent employers, need to be aware of a number of legal issues inherent in the development and application of remote work policies. Among them:
- Employers should ensure that remote work policies are applied in a non-discriminatory manner. This requires ensuring that the employer has legitimate and non-discriminatory reasons for refusing any employee a request for accommodation. As seen above, the EEOC found that the defendant company did not have a legitimate, non-discriminatory reason to deny the employee’s request for accommodation amid the COVID-19 pandemic. Employers still have an obligation to provide accommodations for employees with disabilities who work from home, which may include, for example, extra breaks or the provision of ergonomic computer equipment and accessories.
- Employers should ensure that their productivity and communications monitoring conforms to established company policies. Such monitoring is generally acceptable, as long as there is an appropriate business reason for doing so and employees do not have a reasonable expectation of confidentiality when using the employer’s system. Notably, because many employees are likely to face child care issues and other issues at home due to COVID-19, employers need to remain flexible in their expectations (i.e. that employers should take into account that employees can sometimes be distracted by children, pets and relatives). .
- Employers should continue to allow time off in appropriate circumstances, in accordance with their policies and national and federal legislation.
- Employers should ensure that all non-exempt employees accurately record all of their remote working time to ensure appropriate compensation. The time an employee needs to save includes, but is not limited to, reading and responding to emails and taking phone calls, any time of day. Employers should provide clear policies to non-exempt employees on how to track and record their time. It is important to note that while an employer can prevent an employee from working overtime, they must pay the employee for any overtime actually worked.
- The employer must continue to enforce applicable rest and meal break requirements when employees are working from home, in accordance with local, state and federal laws.
- Employers have a responsibility under the Occupational Safety and Health Act and similar state laws to provide a workplace free from known hazards that can cause harm. Accordingly, employers should encourage employees to review their remote workspaces, and employers may choose to provide a list of best practices for remote workspaces.
- Employers should also stay in contact with workers’ compensation and general liability brokers to determine the extent of coverage for remote work policies.