Man in a Wheelchair

The Equal Employment Opportunity Commission (EEOC) has periodically updated its guidance in response to workplace vaccination questions. Significantly, the agency said that the federal anti-discrimination laws it enforces don’t prohibit employers from requiring all employees who physically enter the workplace to be vaccinated for COVID-19. Employers that encourage or require vaccinations, however, must consider reasonable accommodations when employees refuse to get vaccinated for medical reasons, including pregnancy-related reasons, or based on sincerely held religious beliefs, unless an accommodation would cause undue hardship for the business.[1]

A reasonable accommodation does not mean that an employer must provide an employee with the exact accommodation he or she requests. Rather, it is a fact-specific inquiry that depends on the employee’s condition, the workplace environment, the job position requirements, and business need.

Accommodation and the Americans with Disabilities Act

Thus, under the ADA (Americans with Disabilities Act), leave or remote work is not a required accommodation. In fact, some courts have held that on-site attendance was an essential function of the job. One court noted that in-person attendance at work is a “rather common-sense idea,”[2] and another noted that “most jobs require the kind of teamwork, personal interaction, and supervision that simply cannot be had in a home office situation.”[3] However, with many employers having offered remote working options for some time prior to and during COVID-19, plaintiffs have somewhat of an easier argument that working from home could be reasonable.

The EEOC and Accommodation Requests

Recently, the EEOC sued ISS Facility Services, Inc. for disability discrimination on behalf of an employee who was denied a reasonable accommodation request to work from home.[4]

According to the EEOC’s suit, Ronisha Moncrief worked for ISS as a health and safety manager at ISS’s Takeda facility in Covington, Georgia. From March 2020 through June 2020, ISS required all of its employees to work remotely four days per week because of the COVID-19 pandemic. In June 2020, when the facility re-opened, Moncrief requested an accommodation to work remotely two days per week and take frequent breaks while working onsite because her pulmonary condition made breathing difficult and placed her at a greater risk of contracting COVID-19. Although the company allowed other employees in Moncrief’s position to work from home, it denied Moncrief’s request and, shortly thereafter, fired her.

Such alleged conduct violates the Americans with Disabilities Act (ADA). The EEOC filed suit (Civil Action No. 1:21-CV-3708-SCJ-RDC) in U.S. District Court for the Northern District of Georgia, Atlanta Division, after first attempting to reach a pre-litigation settlement via its conciliation process. The EEOC is seeking back pay, compensatory damages, and punitive damages for the employee, as well as injunctive relief to prevent future discrimination.

This case represents the first lawsuit the EEOC has filed about a request for an ADA accommodation related to COVID-19.

[1] See https://www.eeoc.gov/coronavirus for all of EEOC’s COVID-19 materials.

[2] Samper v. Providence St. Vincent Medical Center, Case No.: 09-CV-1182-AC (D. Or. Aug. 20, 2010).

[3] E.E.O.C. v. Ford Motor Co., 573 F. Supp. 755 (D. Colo. 1983).

[4] See opinion at https://www.eeoc.gov/es/node/133950.

About the Author: Casey Erick

Casey Erick is a Shareholder and focuses on Commercial Litigation and Employment Law.