The US Equal Employment Opportunity Commission (EEOC) recently sued an employer that allegedly unlawfully denied remote work to someone at a heightened risk of severe complications if she were to contract COVID-19.
The agency claimed that Total Systems Services LLC (TSYS), a global payment processing company based in Columbus, Ga., violated the Americans with Disabilities Act (ADA) by denying repeated requests by an employee with diabetes and hypertension to work remotely as a reasonable accommodations. The company also violated the ADA by retaliating against the employee for taking medical leave to avoid exposure to the coronavirus, the EEOC said.
The EEOC’s recent filing in the TSYS case “serves to emphasize that the denial of telework is on the EEOC’s radar,” said Jonathan Mook, an attorney with DiMuroGinsberg in Alexandria, Va. Employers need to be aware of the risks they run if they deny remote-work arrangements to an employee with an underlying medical condition that may be exacerbated should the employee become infected with COVID-19, he noted.
“The facts as alleged are incorrect and TSYS intends to vigorously defend against this frivolous litigation,” said a TSYS spokesperson. “TSYS is very proud of its record, especially the outstanding dedication of our thousands of team members. We look forward to the airing of those facts as part of the judicial process.”
Remote Work Discussion and Leave
According to the EEOC’s complaint, a customer service representative’s supervisor told her team that some employees would be allowed to work remotely due to concerns regarding the spread of COVID-19.
The supervisor allegedly told the workers they had to meet certain criteria to be eligible to work remotely. These include having:
- No current counseling for work performance problems.
- Good attendance records.
- A quiet workplace available.
- A self-sufficient attitude.
- Sufficient Internet speeds to support remote work.
The customer service representative immediately self-quarantined after a call center co-worker tested positive for COVID-19 in May 2020. Her physician sent the employer a note stating that she was to self-quarantine for 14 days, the EEOC said. The customer service representative requested and was granted short-term disability leave, according to the complaint.
While on leave, she allegedly requested remote work due to her health conditions and high-risk status. She provided a physician’s note recommending that she work from home, but the request was allegedly denied. The EEOC said that she applied for and was granted the Family and Medical Leave Act (FMLA) time off until July 9, 2020.
The customer service representative’s supervisor allegedly told her that she was under consideration for remote work but had to conduct an Internet speed test to ensure she satisfied the employer’s technological criteria for remote work. The employer believed she failed the speed test but told her she still might be allowed to work remotely, according to the complaint, but not while on leave, per the employer’s policy.
Just before the employee’s FMLA time off ended, she again requested remote work. Her request was considered ignored. She returned to work in person on July 9 and repeatedly asked various managers and HR about the status of her telework request, according to the complaint. At the time of her return to the workplace, the vast majority of her team apparently was working remotely. Some of the remote workers did not meet all of the stated remote work criteria, the complaint said.
Many of those workers in the call center apparently failed to wear masks, worked in close proximity to each other, and frequently gathered together in common areas and the break room. This made the customer service representative increasingly fearful she would contract COVID-19 at work.
After her repeated requests for remote work were denied, on Aug. 7, having never been offered remote work or any other reasonable accommodation, she “resigned her employment feeling forced to choose between continuing her employment and an unreasonable risk of exposure to a potentially fatal virus,” according to the EEOC.
Is Telework the Answer?
Courts are more receptive to ADA lawsuits seeking remote work as an accommodation than they were prior to the COVID-19 pandemic, Mook said. Even though the pandemic has wanted, employers who want their workers back in the office need to engage in the interactive process—conversations back and forth with a disabled employee—to identify a reasonable accommodation when remote work is requested.
[SHRM members-only how-to guide: How to Handle an Employee’s Request for an ADA Accommodation]
Remote work may not be the answer for some employees and positions. “If there are feasible alternative accommodations, the employer could offer these as an alternative to telework,” Mook said. “Under the ADA, an employer does not need to provide the accommodation of the employee’s choice.”
Alternatives might include wearing masks and having the employee work in a space apart from other workers.
While an employer might have to accommodate an employee with a disability that creates an increased risk of illness if the worker contracts COVID-19, the employer doesn’t have to accommodate a non-disabled worker whose family member has such a disability, said Lori Armstrong Halber , an attorney with Fox Rothschild in Warrington, Pa., and Philadelphia. But association discrimination—such as termination—is prohibited, she explained.
Now that the pandemic has wanted, “employers no longer need to default to the need to work remotely,” she said.
“At this point, it is difficult to argue that a heightened risk of COVID-19 exists at the workplace as opposed to other places an employee ordinarily would go in their personal lives,” said Susan Wiltsie, an attorney with Hunton Andrews Kurth in Washington , DC
That said, remote work may be reasonable for some jobs when an employee is at high risk and telework doesn’t pose an undue hardship on the employer, which Armstrong Halber noted is a difficult standard for employers to meet.