If you give a moose a muffin, he’ll want some jam to go with it.

We all knew it was coming. What happens when employees want to continue to work from home even after the rest of the company returns full-time to the office?

This month, the U.S. Equal Employment Opportunity Commission (EEOC) filed a case involving the obligation to accommodate a disabled employee who wishes to work from home. Although it will be a while until we know how the courts decide which work-from-home requests are reasonable under the Americans with Disabilities Act (ADA), we can learn a lot from the cases that the EEOC chooses to file.

This suit was filed in Georgia against ISS Facility Services, Inc. and alleges that the employer unlawfully denied an employee’s request to work from home as a reasonable accommodation under the ADA.

It’s no wonder why the EEOC picked this case. It’s got favorable facts and should be a good test to see if the courts will allow any cases of this sort. In this specific case:

  • The employee has a pulmonary condition, and her doctor recommended that she work from home;
  • During the pandemic, in March 2020, ISS modified its employees’ work schedules to work from home four days a week. In June 2020, ISS required employees to return to work five days a week;
  • At that time, the employee requested an accommodation to work from home two days per week and take frequent breaks the other three days, which her physician had recommended;
  • The employee’s job required her to be in close contact with other employees;
  • The employer has allowed other employees to work from home;
  • The employee claims to have been unaware of her previous poor performance reviews; and
  • The employer fired the employee shortly after the request.

So what does this mean for you?  Even before the global pandemic, the EEOC had supported reasonable accommodations to work from home under the ADA. However, if employers are dutiful about following the rules, they often can avoid the EEOC coming down on them. For example, when employees request a work-from-home accommodation, employers should consider each request on a case-by-case basis. Keep records about why a particular work-from-home accommodation would create a burden on your organization. Document frequent performance reviews for your employees and communicate issues.

These steps create critical evidence that an employee isn’t being subjected to discrimination when they’re actually being terminated for poor performance. Finally, treat similar employees similarly.

Have a question about best practices to protect your company from government scrutiny and how to document your case-by-case determinations? The Coppola Firm is happy to help every step of the way. Give us a call.