After months of working at home, many employees may have decided they like or need the arrangement and want to keep it.
But what happens if an employer denies that request? A new lawsuit in Georgia — the first of its kind in the U.S. — could partly answer that question. The Equal Employment Opportunity Commission last month sued a metro Atlanta company on behalf of an employee who asked to work from home because of COVID-19 concerns.
For employers, the case represents another pandemic-related challenge, in addition to grappling with how to handle the upcoming vaccine mandate and deciding long-term office space needs. It’s a new wrinkle for workers, too, as they weigh the need to keep a job versus potential virus exposure.
There’s no clear answer in existing law, said Atlanta employment attorney Mac Irvin.
“The issue is, who gets to work remotely and who has to drive in to work and park their cars and go inside the building?” Irvin said.
The EEOC is the federal agency responsible for enforcing civil rights laws against workplace discrimination. That makes it a powerful potential advocate for employees, even though the scope of the Georgia lawsuit is limited.
Many front-line workers, from those working in factories to stores and hospitals, have continued to show up at their workplaces throughout the pandemic. Other types of employees, including clerical staff, have done their jobs at home on laptops as the deadly virus circulates.
The EEOC lawsuit does not involve a situation where the worker must be on site to perform the job. It deals only with what happens if an employee asks to work from home due to a medical condition they say increases their risk of contracting COVID-19 or other health conditions.
In the Georgia case, the employee’s doctor provided a letter saying she should work from home, but the EEOC stressed in the lawsuit that the same situation could apply to any worker with a disability.
As such, the resolution of the case could affect millions of Americans as many employers are trying to bring staff back to the office. In 2019, about 6% of U.S.-based employees worked from home, according to the National Council on Compensation Insurance, citing U.S. Census data. In a Census survey conducted between August and December 2020, about 37% of respondents said they were working from home.
In the lawsuit filed in federal court in Atlanta, the EEOC accused Danish company ISS Facility Services of violating the Americans with Disabilities Act when it denied Ronisha Moncrief’s request to work from home two days per week and to be allowed frequent breaks when working on-site.
ISS had ordered workers in June 2020 to return in person five days a week to the Takeda Pharmaceuticals plant, located near Social Circle on the border of Newton and Walton counties. ISS provides cleaning, security, training and food services to commercial buildings.
Moncrief’s doctor said she should work from home due to her lung disease and hypertension. ISS denied her request in July 2020 and fired her two months later for “performance issues,” according to the EEOC lawsuit.
Moncrief declined to comment. She worked in employee training, according to the lawsuit. An EEOC lawyer declined to share any additional personal details about Moncrief, including her age or place of residence.
As of Oct. 21, ISS had not filed a response to the lawsuit, which is being weighed by the U.S. District Court for the Northern District of Georgia.
ISS spokesman Peter Mikol said in an emailed statement that the company provided “an accommodation that would allow (Moncrief) to perform the essential functions of her job.” John Snelling and Toni Read, Atlanta attorneys representing ISS, did not respond to a request for comment.
Takeda did not employ Moncrief and “was not involved in any employment decisions ISS made regarding this employee,” Takeda spokeswoman Christina Beckerman said in an emailed statement.
The case involves uncharted territory because of conditions created by the pandemic, said Marcus Keegan, an EEOC attorney who filed the lawsuit.
“Both employers and employees are struggling in light of the COVID crisis,” Keegan said.
Irvin said he expects more cases from workers whose work-from-home requests were denied.
Many office buildings remain ghost towns. Office access swipes represented 36% of pre-pandemic levels on Oct. 13, based on data from 10 cities compiled by building security provider Kastle Systems. Many employers postponed planned office returns earlier this fall amid a new surge in COVID cases.
Some companies have set examples that it’s fine to work from home. Accounting firm PwC said its 40,000 client-services employees in the U.S. can work from home indefinitely. Some employers are planning for a hybrid future in which staff work part of the time at the office and part of the time at home.
Employers can find themselves in a tricky situation if they deny work-from-home requests after allowing other staff members to work remotely, said Trey Reeves, an employment lawyer at Fisher Phillips.
Businesses and organizations must provide a clear explanation why “remote work will create an undue burden for your operations,” Reeves said.
Meanwhile, many workers have decided it’s just not worth it to go back to their previous workplace, either because of COVID-19 concerns or the desire to avoid the stress and hassle of commuting. Workers left their jobs at a record pace in August, according to the U.S. Labor Department.
“People are quitting their jobs if they don’t get to work remotely,” Irvin said.
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