The U.S. Equal Employment Opportunity Commission has filed a disability discrimination and retaliation suit against a Georgia employer for refusing to grant a COVID-related accommodation to a worker who requested that she be permitted to work remotely for health reasons.

The suit, the first of its kind, is still in the earliest stages, but nonetheless offers a glimpse into how the EEOC may evaluate claims of disability discrimination in the COVID era. It also underscores the duty of employers to engage in an interactive process whenever an employee seeks an accommodation.

The Lawsuit

Filed on September 7, 2021 in the Northern District of Georgia, the suit alleges that ISS Facility Services discriminated against Ronisha Moncrief, a former health and safety manger, by denying her request for a reasonable accommodation and firing her because of her disability and in retaliation for engaging in a protected activity.

In the first few months of the pandemic, from March to June 2020, the suit says that ISS required all employees to work remotely four days per week. When it reopened its facility in June 2020, it required employees to return to work five days per week.

Moncrief, who suffers from physical impairments including chronic obstructive lung disease and hypertension, requested an accommodation to work remotely two days per week and take frequent breaks while working onsite. She submitted documentation indicating that the accommodation was necessary due to her past and recent bouts with severe pulmonary disease which put her at high-risk for contracting COVID-19. As part of her job duties, Moncrief had close contact with many employees and often shared a desk with co-workers.

The suit alleges that ISS denied Moncrief’s request for an accommodation but allowed other managers to work from home. Shortly after denying her request for accommodation, ISS terminated Moncrief’s employment, citing performance issues. The EEOC alleges that Moncrief could perform the essential functions of her position with an accommodation and that ISS had not told her that her job performance warranted termination.

Considerations for Employers

Employers should continue to engage in the interactive process with employees who request accommodations under the ADA.

Before denying a request to work from home, an employer – especially one that has permitted employees to work from home during the pandemic – should consider whether the essential functions of an employee’s position can be performed remotely. This consideration may also prompt a review of job descriptions and duties, some of which may not have been reviewed for some time and may need to be updated to reflect a “post”-pandemic workforce.

Employers that have previously allowed or required remote work may find it more difficult to argue that in-person presence in the workplace is an essential function of a position. Most importantly, employers should continue to ensure that all requests for accommodation are handled consistently.

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