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why this is the case if they are enforcing a neutral policy. The usual issue will be that a policy like this will be imposed on an employee who is older or has disabilities that make them more at risk of con- tracting COVID-19. As such, when a policy like this is imposed, the employee will ask, due to their disability or age, to continue to work from home as a reasonable accommodation. If and when this hap- pens, employers have a duty to engage in an interactive dialogue with the requesting employee and try to fashion an accommodation that will allow the worker to continue their work without undue hardship to the employer.
As long as this conversation, the interactive dialogue, is had with the requesting employee, it will be difficult for the employee to say that they have been subject to discrimination or that the employer failed to provide a reasonable accommodation. However, the prob- lem arises when the employer does not initiate this conversation.
The EEOC Lawsuit
On March 28, the EEOC sued a company for allegedly denying repeated requests by an employee for remote work as a reasonable accommodation due to the increased risk of COVID-19 and further was alleged to violate the law by retaliating against the employee for taking medical leave to avoid exposure.
The facts in the case, EEOC v. Total Systems Services Inc., involve a customer-service representative who repeatedly requested to work remotely as a reasonable accommodation starting at the beginning of the pandemic in 2020 to decrease the risk of her expo- sure to COVID-19. The employer, in response, without engaging
in an interactive dialogue with the disabled employee, repeatedly denied the requests despite granting remote-work requests to other employees.
While there has not been a ruling in this case yet, it is clear why the EEOC sued the company in question. As a reminder, when an employee requests a reasonable accommodation, the employer has a duty to engage in an interactive dialogue with the employee and attempt to come up with a reasonable accommodation that does not impose an undue hardship on the employer. Here, the employer did not attempt to engage in an interactive dialogue, denying the request (in this case, repeatedly) outright.
Further, even if the company had attempted to engage in an interactive dialogue with the disabled employee (which it did not), the employer would still potentially be liable because it would be more than likely that the employer could not show that the accom- modation request was an undue hardship.
As the EEOC’s lawsuit notes, most of the employee’s depart- ment was allowed to work remotely, despite denying the employee’s request to also work remotely. The company could have possibly shown that the employee’s request was an undue hardship if other employees in the employee’s department were not allowed to work remotely or if a compelling reason was given why the employee and other employees in her department needed to be on site. However, this was not the case here.
Conclusion
As it becomes more and more commonplace for employers to require their employees to come into the office post-pandemic, there will increasingly be more litigation from employees who suf- fer from disabilities or are older, who ask to be given accommoda- tion to work from home in order to avoid COVID-19 exposure.
As shown above, employers, once a reasonable accommodation has been made, must engage in an interactive dialogue with the employee to see if there is a reasonable accommodation that can be granted without undue hardship. It is possible to show that the employee’s request is an undue hardship, but there needs to be an interactive dialogue with the employee first.
If your company is imposing these return-to-work policies and it is questionable whether there is an undue hardship with an employ- ee’s request for a reasonable-accommodation request, it is prudent to seek out representation from employment counsel. BW
Trevor Brice is an attorney who specializes in labor and employment-law matters at the Royal Law Firm LLP, a woman- owned, women-managed corporate law firm that is certified as a women’s business enterprise with the Massachusetts Supplier Diversity Office, the National Assoc. of Minority and Women Owned Law Firms, and the Women’s Business Enterprise National Council.
“When an employee requests a reasonable accommodation, the employer has a duty to engage in an interactive dialogue with
the employee
and attempt to come up with
a reasonable accommodation that does not impose an undue hardship on the employer.”
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