By Katherine L. Wood, Esq.
Determining whether to grant a particular accommodation under the Americans with Disabilities Act (“ADA”) can be a tricky area for employers to navigate. Adding COVID-19 considerations to the discussion has complicated matters even further. Employers should take heed of a recent lawsuit filed by the Equal Employment Opportunity Commission (“EEOC”) when analyzing whether to grant or deny telework accommodations.
Earlier this month, the EEOC filed its first lawsuit alleging failure to accommodate and unlawful termination of a disabled employee who had previously requested to telework as an accommodation during COVID-19. The lawsuit, filed in Georgia federal court, alleges that a disabled employee was denied an accommodation of teleworking two days per week. The employee had requested this accommodation because she was at a higher risk of contracting COVID-19 due to an underlying condition. The employee was allegedly able to perform all the essential functions of her job while working from home. The employer denied the accommodation request, and the employee was subsequently terminated. Perhaps important to the EEOC’s decision to sue, other employees were permitted to work from home.
The EEOC alleges that the denial of this accommodation and the employee’s subsequent termination, violated the ADA. The attorney for the EEOC has stated, “in light of the additional risks to the health and safety created by COVID-19, it is particularly concerning that an employer would take this action…”
Employers should be aware of this lawsuit, as it indicates that the EEOC considers telework to be a reasonable accommodation with respect to COVID-19, at least in some circumstances. Thus, employers should seriously evaluate the litigation risk of denying a request for a telework accommodation.
Also of note is a case from Massachusetts, where a federal magistrate found that a plaintiff, who also had an underlying condition making him more susceptible to contracting COVID-19, sufficiently pled his disability and age discrimination claims against his employer when the employer denied a telework accommodation request. There, the employee alleged that his employer did not engage in the ADA interactive process with him, and instead prepared to terminate him if he did not report to the office. The judge also allowed the age discrimination claim to continue, on the basis that age also made the employee more susceptible to contracting COVID-19.
Employers should continue to follow the EEOC’s guidance, available here, when analyzing disability and accommodation issues. Keep in mind that the guidance states that previously allowing employees to telework does not mean that the employees’ essential job functions are changed, that telework is always a feasible accommodation, or that telework does not pose an undue hardship. Requests to telework as reasonable accommodations do not need to be granted if the employee will not be able to perform an essential function of her job. With that said, the EEOC has cautioned that “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.”
We are continually assessing COVID-19-related issues in the employment context. For guidance on these issues, or other labor and employment concerns, please contact any member of the firm’s Labor & Employment team at 716-849-8900.