After the COVID-19 pandemic required many employers to implement remote work arrangements (both to continue their operations and to comply with new state and federal regulations), questions arose as to how this development would impact businesses’ obligation to allow employees to work from home as an accommodation to a disability in the future. As a result of a first-of-its-kind case filed recently by the U.S. Equal Employment Opportunity Commission, employers may soon get a glimpse at the administrative body’s attitude toward the future of work-from-home arrangements.
Here is a quick summary of the facts of the case, how it could impact your operations, and three action items to minimize exposure from an agency or plaintiff’s attorney bringing a similar lawsuit against your company.
Alleged denial of work-from-home request leads to litigation
The case involves a former health and safety manager for ISS Facility Services. In March 2020, at the outset of the pandemic, she says she requested an accommodation to work from home two days per week as an accommodation for her chronic obstructive lung 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 per week. However, in June 2020, ISS required all staff to return to in-person work at its facility five days per week.
After the company required employees to return to work, the individual says she renewed her request to the human resources department that she be allowed to work from home two days per week as an accommodation pursuant to the Americans with Disabilities Act (ADA). The EEOC alleges that the individual provided ISS with documentation indicating that her history of heart conditions increased her COVID-19 risk. The EEOC further alleges that her job duties generally required her to be in close contact with other employees and that other employees had been allowed to work from home following the June 2020 return-to-work requirement.
According to the lawsuit, ISS denied the individual’s request to work from home in July 2020. Thereafter, in August 2020, her supervisor then allegedly recommended her for termination based on performance. In September 2020, the lawsuit alleges that ISS terminated the employee for performance-related issues. The EEOC alleges that she had not been advised that her performance was grounds for termination at any time prior to her termination.
What does it mean to your operations?
Prior to the pandemic, the EEOC historically advocated that work-from-home requests be granted as an accommodation under the ADA. As expected, the EEOC is now attempting to use an employer’s previous remote working arrangements during the COVID-19 pandemic as evidence that employees should have been permitted to continue to accomplish the essential functions of their employment in a remote capacity.
Employers should be prepared to address why an individual can no longer work from home if that was allowed during the pandemic. In addition to following regular interactive process protocols, employers should give special consideration to remote work requests. It is possible that workplaces that have been able to operate efficiently under remote arrangements will be expected to make remote work available as an accommodation going forward. The arguments adopted by the EEOC will no doubt be used by the agency and enterprising plaintiffs’ attorneys across Oregon to undermine the credibility of employers that argue that remote work requests cannot be accommodated. If you determine that continued remote work will create an undue burden for your operations, you must be able to articulate how that burden should be understood.
Three action items for employers:
- Review existing accommodation requests. Granting an accommodation for remote work, like any request for an 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 scrutinized more closely going forward – especially if the employee in question worked remotely for some period of time or if others have been allowed to continue to work remotely.
- Review job duties and position descriptions. The first step in determining whether an employee can perform his or her job duties with an accommodation such as remote work is to know precisely what the employee’s essential job duties are and how often he or she performs those tasks. Outdated job descriptions or understandings of an employee’s actual job duties can hinder this analysis. For example, a job that requires frequent or daily face-to-face customer or client interaction may no longer be the expectation. Instead, the prevalence of meeting through any one of the many videoconference platforms that have flourished over the past year may be a more acceptable means of communication for many clients or customers. Further, many employers have had to provide employees with the equipment and access needed to work remotely, undermining in many cases any argument that doing so would pose an undue burden.
- Ensure that requests are being handled consistently. Evidence that other employees – especially those in the same or similar positions – have been allowed to work remotely or continue to work remotely may be 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 must be able to adequately articulate why it can accommodate some employees and not others. This may 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 instances, you should no longer take a blanket approach to work-from-home requests and instead engage in a case-by-case assessment of each employee’s request in light of what was done during the COVID-19 pandemic.
The EEOC has showed its hand on how it intends to litigate against these claims. If after undertaking the action plan discussed above, facts arise that do not pass the “smell test,” please reach out to counsel to discuss next steps. Not reaching out to counsel to develop an action plan to minimize exposure is like throwing scissors after your opponent has told you he or she is going to throw rock in Rock, Paper, Scissors.
Stephen Scott is an associate in the Portland office of Fisher Phillips, a national firm dedicated to representing employers’ interests in all aspects of workplace law. Contact him at 503-205-8094 or [email protected].