{"id":535,"date":"2021-10-05T15:34:22","date_gmt":"2021-10-05T15:34:22","guid":{"rendered":"https:\/\/forework.com\/?p=535"},"modified":"2022-12-24T20:04:54","modified_gmt":"2022-12-24T20:04:54","slug":"requiring-all-employees-to-return-to-work-in-the-office-might-not-be-so-easy-says-eeoc","status":"publish","type":"post","link":"https:\/\/forework.com\/requiring-all-employees-to-return-to-work-in-the-office-might-not-be-so-easy-says-eeoc\/","title":{"rendered":"Requiring all Employees to Return to Work in the Office? Might not be so Easy, says EEOC"},"content":{"rendered":"\n


In view of the mass remote work arrangements that have been implemented in the course of the pandemic, employers will have a tougher time justifying denials of accommodation requests where employees seek to work from home.<\/p>\n\n\n

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As vaccination rates increase and the COVID-19 pandemic subsides, many employers have instructed their employees to return to in-person work. However, in many cases employees have resisted returning to work and have even sought accommodations as a way to avoid returning to work. A recent U.S. Equal Employment Opportunity Commission (EEOC) case illustrates some of the challenging legalities when the interests of the employer collide and diverge with the interests of employees.<\/p>\n\n\n\n

Factual Background<\/strong><\/p>\n\n\n\n

On September 7, 2021, the EEOC filed suit in the Northern District of Georgia against ISS Facility Services, Inc. (ISS), a facility management services company. ISS employed Ronisha Moncrief as a Health Safety and Environmental Quality manager in its Georgia office. In early March 2020, Ms. Moncrief was diagnosed with obstructive lung disease. Her doctor recommended that she work from home. The physician completed ISS’s ADA Reasonable Accommodation Request Medical Certification Form.<\/p>\n\n\n\n

As the COVID-19 pandemic hit the United States, ISS \u2014 like many employers \u2014 instructed its employees to work from home. A few months later, in June 2020, ISS required all employees to return to the physical workplace. Ms. Moncrief’s job duties in the workplace included close contact with many employees and sharing a desk with others. As a result, Ms. Moncrief requested an accommodation pursuant to the American with Disabilities Act (ADA). She sought permission to work remotely two days per week and for frequent breaks while working onsite because her lung disease put her at high risk of contracting COVID-19. ISS allegedly denied Ms. Moncrief’s accommodation request and, two months later, terminated her employment, citing “performance issues.”<\/p>\n\n\n\n

The EEOC’s suit followed, alleging that ISS failed to accommodate Ms. Moncrief’s disability and retaliated against her for seeking a disability accommodation. The EEOC seeks a permanent injunction enjoining defendant ISS from discriminating against disabled employees and monetary damages for back pay, past and future pecuniary losses, inconvenience, emotional pain and suffering, and punitive damages.<\/p>\n\n\n\n

Takeaways for Employers<\/strong><\/p>\n\n\n\n

One takeaway from the ISS suit is that, according to the EEOC, telework may be here to stay for employees with qualifying disabilities. The COVID-19 pandemic forced many employers to allow their employees to telework on a full-time basis. As a result, employers may find it more difficult to credibly claim that telework is not a reasonable accommodation for employees with qualifying disabilities.<\/p>\n\n\n\n

Another takeaway is that the EEOC may consider the risk of contracting COVID-19 as a disability that must be accommodated by an employer. Ms. Moncrief’s lung condition did not prevent her from performing her essential job duties. Instead, according to the EEOC complaint, her lung condition presented a heightened risk of her contracting COVID-19. The EEOC claims that heightened risk of a COVID-19 infection entitled Ms. Moncrief to an accommodation, and in her case, a telework arrangement. Relatedly, the EEOC has clarified that individuals with “long COVID” may qualify as disabled under the ADA.<\/p>\n\n\n\n

In light of the above, employers should consider the following proactive measures to limit their risk of a disability lawsuit.<\/p>\n\n\n\n