Oct 06, 2021

Denial of Work-From-Home Requests: A New Era of Discrimination?

By: Marissa Cerkoney

Throughout the pandemic, we have seen the rise of employees working from home. While there are many employees that are continuing to work remotely, others have started to head back to the office. For some, employers have made it a requirement to return to the workplace. However, with any workplace “requirement” comes potential risks, and a facility management company out of San Antonia, Texas, is experiencing one of the potential risks first-hand.

At the beginning of the pandemic, ISS Facility Services (“ISS”) required all employees to work remotely four days per week. However, when it reopened its facility in June 2020, it required employees to return to the workplace five days per week. Ronisha Moncrief, an employee at ISS, requested an accommodation to work remotely two days per week and take frequent breaks while working onsite due to her pulmonary condition that causes her to have difficulty breathing and places her at a greater risk of contracting COVID-19. Ms. Moncrief’s request was denied, despite the fact that ISS was allowing others in similar positions to work from home. Shortly after denying her request for accommodation, ISS terminated Ms. Moncrief’s employment.

The Equal Employment Opportunity Commission (“EEOC”) has filed a lawsuit against ISS claiming that such alleged conduct by ISS violated the Americans with Disabilities Act (“ADA”). Under the ADA, employers are required to provide reasonable accommodation to qualified individuals with disabilities who are employees or applicants for employment, unless to do so would cause undue hardship. In general, an accommodation is any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities.

The regional attorney for the EEOC handling this lawsuit has stated, “[i]n 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.” The EEOC is seeking back pay, compensatory damages, and punitive damages for Ms. Moncrief, as well as injunctive relief to prevent future discrimination.

The Takeaway:

This case, which represents the first lawsuit the EEOC has filed regarding a request for an ADA accommodation related to COVID-19, is still in the earliest stages, but nonetheless offers a glimpse into how the EEOC may evaluate claims of disability discrimination in the COVID-19 era.

Employers are urged to engage in the interactive process with employees who request accommodations under the ADA. It is important that employers should ensure that all requests for accommodation are handled consistently. Employers are well advised to seek legal counsel when confronted with possible employment discrimination.

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(Otherwise known as “the fine print”)

I make a serious effort to be accurate in my writings. These articles are not exhaustive treatises, though, so do not consider them complete or authoritative. Providing this information to you does not create an attorney-client relationship with my firm or me. Do not act upon the contents of this or of any article on our homepage or consider it a replacement for professional advice.

Reprinted with permission from an article submitted for publication in the October, 2021 Southwest Area Human Resource Association newsletter.