This fall, the Equal Employment Opportunity Commission (the “EEOC”) filed a lawsuit against a San Antonio-based workplace experience and facility management company, alleging that the defendant company unlawfully denied its employee’s request to work from home to protect herself from COVID-19. This suit, which is the EEOC’s first of its kind, is a reminder to employers of the legal issues and potential risks involved in developing and enforcing remote-work policies.
In EEOC v. ISS Facility Services, Inc., 1:21-cv-03708 (N.D. Ga. 2021), the employee worked as a health and safety manager at the defendant’s facility in Covington, Georgia. Near the beginning of the pandemic, in March 2020 through June 2020, the defendant required all employees to work remotely four days per week. In June 2020, the defendant re-opened its facility, and the employee requested an accommodation to work remotely two days per week and take a series of breaks while on site due to a pulmonary condition. The employee alleged that the condition caused her to have difficulty breathing and placed her at a greater risk of contracting COVID-19. The EEOC alleged that, although the defendant allowed others in the employee’s position to work remotely, it nevertheless denied the employee’s request. Following the denial, the defendant terminated the employee for “performance issues.”
The EEOC alleges that the defendant’s actions violated the Americans with Disabilities Act of 1990, as amended, and Title I of the Civil Rights Act of 1991. After failing to reach an agreement with the defendant, the EEOC filed suit seeking back pay, compensatory damages, punitive damages, and injunctive relief. This case remains in the very early stages of litigation, with the defendant having filed its answer in November 2021.
Employers, and those representing employers, should remain cognizant of a number of legal issues inherent in crafting and applying remote-work policies. Among them:
- Employers should ensure that they apply remote work policies in a non-discriminatory manner. This requires ensuring that the employer has legitimate, non-discriminatory reasons to deny any employee a request for accommodation. As seen above, the EEOC found that the defendant company did not have a legitimate, non-discriminatory reason for denying the employee’s request for accommodation in the midst of the COVID-19 pandemic. Employers still have an obligation to provide accommodations to employees with disabilities who work from home, which may include, for example, allowing for additional breaks or furnishing ergonomic computer equipment and accessories.
- Employers should ensure that their monitoring of productivity and communications is consistent with established company policies. Such monitoring is generally acceptable, so long as there is an appropriate business reason to do so, and employees do not have a reasonable expectation of privacy in using the employer’s system. Notably, because many employees likely face challenges with childcare and other home issues due to COVID-19, employers must remain flexible in their expectations (i.e., employers should take into consideration that employees may face occasional distractions from children, pets, and loved ones).
- Employers should continue to allow for leave in appropriate circumstances consistent with their policies and state and federal law.
- Employers should ensure that all non-exempt employees accurately record all of their remote working time to ensure appropriate compensation. The time an employee must record includes but is not limited to, reading and responding to e-mails and taking phone calls—no matter what time of day. Employers should provide clear policies to non-exempt employees relative to how to track and record their time. Importantly, although an employer may prevent an employee from working overtime, it must pay the employee for any overtime actually worked.
- The employer should continue to enforce applicable rest and meal break requirements when employees are working from home, consistent with local, state, and federal law.
- Employers have the responsibility under the Occupational Safety and Health Act and similar state laws to provide a workplace that is free from recognized hazards likely to cause harm. Accordingly, employers should encourage employees to review their remote work areas, and employers may choose to provide a list of best practices for remote workspaces.
- Employers should also remain in contact with workers’ compensation and general liability coverage brokers to determine the scope of coverage relative to remote working policies.
About the Author:
Aaron Burrell (Member, Detroit & Troy) focuses his practice in the areas of complex commercial litigation, labor and employment law, appellate law, and minority business enterprises. As a member of the firm’s labor and employment practice, he has successfully defended clients in a wide range of discrimination and unfair-labor-practice claims in state and federal court, as well as before the Equal Employment Opportunity Commission, the Michigan Department of Civil Rights, and the National Labor Relations Board. Mr. Burrell has also counseled clients on all aspects of the employment relationship including hiring, discipline, and the creation and enforcement of employment agreements. Mr. Burrell may be reached at 313-223-3118 or at firstname.lastname@example.org.