In Moncrief v. ISS Facility Services, the Equal Employment Opportunity Commission (“EEOC”) argues that ISS Facility Services’ denial of an employee’s reasonable accommodation request to work remotely part-time violated the Americans with Disabilities Act (“ADA”). Filed on September 7, 2021, Moncrief marks the EEOC’s first ever lawsuit claiming an employer violated the ADA by failing to provide accommodations related to the COVID-19 pandemic.

The EEOC brings this charge on behalf of Ronisha Moncrief, a former Health Safety & Environmental Quality Manager hired by ISS Facility Services. According to the complaint, Moncrief has chronic obstructive lung disease and hypertension which substantially limit multiple major life activities – meeting the statutory definition of an individual with a disability. After her diagnosis in March 2020, Moncrief’s doctor recommended she work from home and take frequent breaks. Coincidentally, the COVID-19 pandemic led ISS Facility Services to place all staff on rotating schedules that required employees to work from home four days each week. The complaint indicates this work arrangement helped Moncrief manage her condition.

However, Moncrief’s employer required all staff to return to a five-days per week on-site work schedule around June 2020. In response, the complaint states that Moncrief requested a reasonable accommodation for her disability to work from home two days per week. Her employer denied this request despite other Health Safety & Environmental Quality Managers continuing to work from home. The employer then fired Moncrief in September 2020 citing performance issues even though Moncrief had never been informed of any job performance issues. The EEOC alleges that these actions constitute disability discrimination in violation of Title I of the ADA.

Title I of the ADA prohibits employers from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training and all other terms, conditions, and privileges of employment. Title I requires employers to make reasonable accommodations for qualified individuals with disabilities unless such accommodations would result in undue hardship (defined as an action requiring significant difficulty or expense). The ADA defines a qualified individual as one who, with or without reasonable accommodation, can perform the essential functions of the job.

Pre-pandemic, the EEOC and the courts questioned the suitability of telework as a reasonable accommodation. For example, in its long-standing position on telework, the EEOC stated telework need only be provided where telework meets all essential functions of a job and no alternative workplace arrangements could meet the employee’s needs. The circuit courts are divided on whether teleworking can ever be a reasonable accommodation. The Seventh Circuit determined that attendance at the workplace is an essential function of most jobs, so telework cannot be a reasonable accommodation as a matter of law. The Fifth Circuit agreed. Most recently, the Sixth Circuit found regular on-site attendance an essential function, commenting that most jobs require teamwork and interaction that cannot take place via telework.

Other circuits have held that teleworking may be a reasonable accommodation. For example, the Second Circuit held physical presence at or by specific time is not, as a matter of law, an essential function of all employment.  Instead, reasonable accommodations for telework are subject to highly fact specific evaluations. Among the many considerations, courts examine the nature of the employee’s particular disability, whether the workplace exacerbates disability symptoms, the nature of the request (part-time or as needed telework is typically favored over permanent telework arrangements), and the requirements of the job such as face-to-face conduct, supervisory functions, customer or vendor conduct, etc. Some courts have considered an employer’s permission for other similarly situated employees to work at home or an employee’s past teleworking arrangements as indicative that teleworking constitutes a reasonable accommodation.

As a result, one of the major questions arising from the widespread remote work arrangements instituted to limit the spread of COVID-19 is if employers will be required to automatically approve remote work arrangements moving forward. In September 2020, the EEOC determined employers are not required to automatically grant telework accommodations. Instead, the EEOC remained consistent with its long-standing position that telework arrangements need only be granted when all essential functions can be met by telework and no alternative accommodations are available. However, it will likely be harder for employers to prove that all essential functions of the job cannot be met through telework now that employees have successfully worked remotely for long stretches of time across many industries.

Further, Moncrief signals the EEOC’s potential increased scrutiny regarding denial of telework as a reasonable accommodation, particularly in cases where employees previously were allowed to work remotely. Thus, Moncrief could have significant ramifications for employers although it remains to be seen if courts will adopt a more expansive standard when evaluating telework as a reasonable accommodation in light of the worldwide pandemic.