Over the last few days, employers have been focused on OSHA as it develops the Emergency Temporary Standard (ETS) on vaccine mandates at President Biden’s direction. You can read more about those mandates on our blog here. While employers await that ETS, they should be aware of recent activity by the U.S. Equal Employment Opportunity Commission (EEOC) addressing COVID-19 in the workplace.
Earlier this month, the EEOC filed a lawsuit against ISS Facility Services, Inc., (ISS) a Denmark-based workplace experience and facility management company with U.S. headquarters in San Antonio, TX. In the lawsuit, the EEOC alleges that ISS unlawfully denied its employee’s reasonable request for an accommodation for her disability and then fired her for requesting it.
According to the EEOC’s complaint, the Georgia-based employee, Ronisha Moncrief, had a pulmonary condition that caused her to have difficulty breathing and placed her at a greater risk of significant illness from COVID-19. From March 2020 to June 2020, employees, including Ms. Moncrief, worked remotely. Then, when the facility reopened, ISS called its employees back to the workplace. Ms. Moncrief asked to continue to work remotely for two days a week and that she be permitted to take frequent breaks when she was working onsite due to her condition. Notably, although ISS continued to let other employees in Ms. Moncrief’s position work remotely, it denied her request and fired her for alleged performance reasons.
The EEOC claims that the alleged conduct violates the Americans with Disabilities Act (ADA) and is seeking back pay, compensatory damages, and punitive damages for the employee, as well as injunctive relief to prevent future discrimination. The EEOC’s position in the lawsuit is clear: once an employer starts bringing employees back to the office, if the employer allows employees without disabilities to continue to work remotely, then the employer should treat all similarly-situated employees with disabilities the same way.
This case represents the first lawsuit the EEOC has filed about a request for an ADA accommodation related to COVID-19, but employers can be sure it will not be the last.
In addition, the EEOC recently announced that it recognizes that “long COVID” may be an ADA disability in certain circumstances. This position is in line with the guidance issued by the Department of Health and Human Services and the Department of Justice. According to the Centers for Disease Control and Prevention (CDC), people with long COVID have a range of new or ongoing symptoms that can last weeks or months after they are infected, including the following:
- Tiredness or fatigue
- Difficulty thinking or concentrating (sometimes called “brain fog”)
- Shortness of breath or difficulty breathing
- Headache
- Dizziness on standing
- Fast-beating or pounding heart (known as heart palpitations)
- Chest pain
- Cough
- Joint or muscle pain
- Depression or anxiety
- Fever
- Loss of taste or smell
The CDC made clear that the above list is not exhaustive. Some people also experience damage to multiple organs including the heart, lungs, kidneys, skin and brain. If an employee is experiencing long COVID symptoms that are impacting the employee’s ability to perform the employee’s job functions, the employer may be required to discuss whether there are any accommodations it can make that won’t pose an undue hardship to the business.
The EEOC plans to update its technical assistance about COVID-19 in the coming weeks.
While there is no outcome to the EEOC’s newly filed lawsuit and no court has yet weighed in on the EEOC’s position on long COVID as a disability, employers should proceed with caution when employees with disabilities request accommodations during the pandemic. If you have any questions on specific accommodation requests or related matters, please feel free to reach out to any of our attorneys.