Covid-19 Updates, | Oct 05, 2021

EEOC Files its First COVID ADA Accommodations Related Case

The Equal Employment Opportunity Commission (“EEOC”) has filed its first lawsuit about a request for an Americans with Disabilities Act (“ADA”) accommodation related to COVID-19. This marks the EEOC’s first COVID ADA accommodations related case.

The EEOC has filed a lawsuit in U.S. District Court for the Northern District of Georgia, Atlanta Division against ISS Facility Services, Inc., a Denmark-based workplace experience and facility management company. 

The complaint alleges that the company unlawfully denied an employee’s request for an accommodation for people with disabilities and then fired her for requesting the accommodation in violation of the Americans with Disabilities act.

Summary of Factual Allegations
The EEOC’s lawsuit alleges that Ronisha Moncrief worked for ISS as a health and safety manager at ISS’s Takeda facility in Covington, Georgia. From March 2020 through June 2020, ISS required all of its employees to work remotely four days per week due to the COVID-19 pandemic.

Moncrief had a pulmonary condition that caused her to have difficulty breathing and placed her at a higher risk of contracting COVID-19.  When the facility later re-opened in June 2020, Moncrief requested an accommodation to work remotely two days per week and take frequent breaks while working onsite due to her pulmonary condition.  Although the company allowed other employees in Moncrief’s position to work from home, it denied Moncrief’s request and, shortly thereafter, fired her.

Under the ADA, denying a reasonable accommodation and terminating an employee because of a disability and requesting an accommodation clearly violates the ADA at any time.  In its Press Release, the EEOC expressed special sensitivity to the fact that this case concerned COVID-19: “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.”

Employer’s Obligation to Engage in the Interactive Process
While COVID creates unique and unprecedented challenges for employers, how an employer should respond to a request for an accommodation based on COVID is no different from how it should respond to an accommodation request based on other impairments that could qualify as a disability. 

To help determine effective accommodations, the EEOC recommends that employers use an “interactive process,” meaning that employers and employees with disabilities who request accommodations have a discussion and work together to come up with possible accommodations that would enable the employee to perform the essential job functions.  In essence, the employer asks the employee how it can help the employee perform the essential job functions. 

As part of this interactive process, the EEOC recommends that employers:
(1) Analyze the particular job involved and determine its essential functions;

(2) Consult with the individual with a disability to ascertain the precise job-related limitations imposed by the individual’s disability and how those limitations could be overcome with a reasonable accommodation;

(3) In consultation with the individual to be accommodated, identify potential accommodations and assess the effectiveness each would have in enabling the individual to perform the essential functions of the position; and

(4) Consider the preference of the individual to be accommodated and select and implement the accommodation that is most appropriate for both the employee and the employer.

COVID ADA: Significance to Employers
The EEOC lawsuit against ISS Facility Services, Inc., is the first lawsuit filed by the EEOC about a request for COVID ADA accommodation.  However, the allegations in the EEOC’s lawsuit are not uncommon.

Employers should anticipate more lawsuits based on these types of claims by the EEOC and private litigants, especially as employers bring employees back to the workplace.  Studies show that surges in litigation also tend to follow surges in COVID-19 cases. As the number of Delta variant cases increase, it seems a certainty that this trend will continue. 

Employers should appreciate that the EEOC is going to closely scrutinize employers that require employees to physically return to the workplace when they have an impairment and can arguably perform their work remotely. 

Prior EEOC Guidance stated that telework during COVID can serve as a “trial period that showed whether or not this employee with a disability could satisfactorily perform all essential functions while working remotely. As with all accommodation requests, the employee and the employer should engage in a flexible, cooperative interactive process going forward if this issue does arise.”

Against this COVID ADA backdrop, employers should carefully consider requests to work remotely due to impairments as they try to return their employees back to the workplace.

As always, please let me know if I can help.

Covid-19 Updates, | Oct 05, 2021
Kenneth N. Winkler
Kenneth N. Winkler

Kenneth Winklera shareholder at Berman Fink Van Horn, helps employers navigate the employment laws and regulations that govern the workplace.