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First COVID-19 ADA suit underway

Employers who implemented widespread work-from-home arrangements during the pandemic may soon find it harder to deny remote work requests made under disability claims.

In September, the U.S. Equal Opportunity Employment Commission (EEOC) filed a first-of-its-kind lawsuit against an employer for allegedly denying an employee’s ADA request and then terminating her shortly thereafter.

The employer, a facility management company, reportedly required all of its employees to work remotely four days a week from March 2020 to June 2020. When employees were called back into the workplace, the plaintiff requested continued remote work two days per week as an accommodation under the Americans with Disabilities Act (ADA). According to the EEOC complaint, the employee provided documentation of a heart condition that increased her COVID-19 risk.

Per the lawsuit, the employer denied the plaintiff’s request, and in September her supervisor allegedly recommended her for termination due to performance issues. The EEOC contends that the plaintiff had not previously been advised that her performance put her at risk for termination.

Implication for employers

While the EEOC has advocated that remote work requests be granted as a reasonable accommodation under the ADA, the courts generally have taken an opposing view. Now, given the prevalence of work-from-home arrangements during the pandemic, we may see a shift in judgment.

Going forward, the EEOC may use an employer’s remote work arrangements during the pandemic as evidence that employees can accomplish essential job functions in a remote capacity. While it remains to be seen, the courts could follow suit and determine that remote work is, in fact, a reasonable accommodation.

What to do now

In light of the EEOC suit, employers are advised to review any existing accommodation requests. Expect that denials of remote work accommodation requests may receive more scrutiny, particularly if the employee has worked remotely in the past or others in similar roles are working remotely. Employers are also advised to review and update job descriptions in light of new workplace norms.

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