A facility management firm paid $47,500 to settle the EEOC claim that it discriminated against a disabled worker at high risk of contracting COVID-19 by not allowing them to work part-time from home. (EEOC v. ISS Facility Services, Inc., No. 21-0378 (N.D. Ga. Sept. 7, 2021)).

Case files reveal that the worker was employed at a Georgia factory. As stated in the complaint, she was diagnosed with hypertension and obstructive lung disease in March of 2020, resulting in her experiencing chronic coughing and breathing difficulties. As a result of COVID-19, from March to June 2020, employees worked a one-day-at-the-plant, four-days-at-home cycle. The EEOC claimed discrimination occurred when the employer demanded the worker return to the facility five days per week, even though the worker had previously requested to work from home two days per week and take regular breaks while on-site. She claimed in her lawsuit that she was at high risk for developing COVID-19 because of her underlying lung condition and the fact that she frequently shared a desk with coworkers.

Even though the employer purportedly allowed other employees in similar positions to work from home, the EEOC claims it violated the worker's rights by denying her request. The employer allegedly fired her due to performance issues some weeks later. The Equal Employment Opportunity Commission filed a complaint critical of the company for discrimination based on the employee's disability and her request for reasonable accommodation. In addition to the $47,500 payment, the corporation has agreed to let the EEOC monitor its future accommodation practices for two years as part of a consent agreement.

Our Conclusion

An employee-side attorney remarked at an ABA conference in November that while COVID-19 may have "forever changed" the way telework is seen as an accommodation under the ADA, the ADA's essential principles are still in place. She stressed the need to remember this because "flexibility fatigue" has led to managers requesting stricter limits on hybrid and remote work.

EEOC guidelines on COVID-19, the ADA, and the Rehabilitation Act state that an employer is not required to immediately grant an employee's accommodation request to continue teleworking when recalling them back to the worksite. For instance, the guidance allows employers to opt for an alternate form of reasonable accommodation at the workplace if they believe it will adequately address the requirement.

According to the recommendations, the first step is an "open, cooperative, and interactive" exchange of information between the employer and the employee about the request. The purpose of the interactive procedure is to help the employer understand the nature of the handicap that necessitates remote work.

The EEOC further notes that companies are not required to accommodate employees' requests to work remotely if doing so would need them to perform fewer duties. An EEOC Q&A on teleworking emphasizes that the interactive method aids in identifying these duties. A management-side attorney mentioned this during the ABA meeting, saying that an employee's presence on-site may be required to perform an essential role. 

The employee-side lawyer emphasized that, even as COVID-19 cases decline, employers should be wary of requests from immunocompromised workers who are reluctant to return to work.

An attorney informed attendees at the Disability Management Employer Coalition's annual conference in August, before the settlement, that this case should generate an alarm for businesses now. The employer will have difficulty rejecting a remote worker's request for a reasonable accommodation if the worker has already been performing some job duties from home.

Image courtesy Outcast India @outcast_india

About Jim Woods

Jim Woods is a diversity, equity and inclusion expert with over 20 years of experience in the field. He has worked with organizations of all sizes, from small non-profits to large Fortune 500 companies, helping them to create more inclusive and equitable workplaces.

Jim is passionate about promoting diversity and inclusion in the workplace, and has a track record of success in implementing effective DEI strategies. He has a deep understanding of the challenges and opportunities that organizations face when it comes to building a more diverse and inclusive culture, and is skilled at working with leadership teams to develop and execute strategies that drive positive change.

In addition to his work as a DEI expert, Jim is also a sought-after speaker and trainer. He has spoken at conferences and events around the world, sharing his knowledge and insights on topics such as unconscious bias, cultural competency, and inclusive leadership. He is also a frequent contributor to industry publications, sharing his expertise and thought leadership on DEI best practices.

Jim holds a bachelor's degree in business administration and a master's degree in organizational development and human resources. He is a certified diversity and inclusion practitioner and a member of the Society for Human Resource Management.

Overall, Jim is a highly respected and accomplished DEI expert, with a proven track record of helping organizations build more inclusive and equitable cultures.