By Meghan Lehner, Cleveland Lehner Cassidy
Remote work has long been recognized as a potential accommodation for employees with disabilities. But March 2020 saw many employers requiring all of their employees to work from home regardless of disability or accommodation status. Before COVID-19, court rulings on remote work almost categorically sided with the employer, relying on employers’ business judgment that an employee’s presence in the workplace is an essential function of the job. Since COVID-19 required many employers to put most or all of its employees on remote work, in many cases for several months or more, employees may fair better in their attempts to show that attendance is not an essential function of the job in many instances and that working from home is a reasonable accommodation.
Under the Americans with Disabilities Act (ADA), an employer must provide a reasonable accommodation to an employee with a disability so long as the employee’s accommodation allows him or her to perform “essential job functions” and does not cause an “undue hardship” to the employer, which means “significant difficulty or expense.” Before COVID-19, employers often rejected telework requests citing a litany of reasons why remote work would cause an undue hardship, like poor performance and low productivity. However, in many of these cases, the job at issue had never been performed remotely before. After COVID-19 hit, a lot of jobs that we never thought could be virtual went virtual. Employees with disabilities whose doctors recommend that they continue to work from home can now point to the quality of their work while at home to defend against an employer’s claim of significant difficulty or expenses.
Specifically, the Equal Employment Oppportunity Commission (EEOC) provided guidance in instances where an employee was denied a request to telework prior to COVID-19 and was later allowed to telework during the pandemic. The commission found “the period of providing telework because of the COVID-19 pandemic could serve as a trial period that showed whether or not this employee with a disability could satisfactorily perform all essential functions while working remotely, and the employer should consider any new request in light of this information.” In these instances, the EEOC’s remarks place the burden on the employer to demonstrate that continued telework impairs the employee from performing essential job functions and places an undue hardship on the company.
The EEOC decided to test out its theory this week when it filed EEOC v. ISS Facility Services, Inc., N.D. Ga., No. 1:21-CV-3708-SCJ-RDC. In this case, all of the employees at the ISS Facility, where the plaintiff worked in Covington, Ga., were required to work remotely from March 2020 to June 2020. When the facility reopened, the plaintiff asked to work remotely two days per week and take frequent breaks while working on-site because of a documented pulmonary condition, which causes her to have difficulty breathing. Although other employees were allowed to continue to work from home, her request was denied and she was fired.
Stay tuned for updates.
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