- Total Systems Services, LLC denied a worker with diabetes, hypertension and anxiety the accommodation to work remotely — and then retaliated against her for using federally protected medical leave — in violation of both the Americans with Disabilities Act and Title I of the Civil Rights Act of 1991, the U.S. Equal Employment Opportunity Commission alleged in a lawsuit Wednesday (EEOC v. Total System Services, LLC No. 1:23-cv-01311 (N.D. Ga. March 29, 2023)).
- The employee, whose health conditions put her at higher risk of serious complications or death if she contracts COVID-19, requested remote work as a reasonable accommodation in May 2020, after several colleagues tested positive for COVID, according to the complaint. Although her job duties as a customer service representative involved using the phone, the computer and meeting with supervisors and colleagues — all duties that “could be completed remotely,” according to EEOC — she was denied the accommodation.
- Because she was denied the remote work accommodation, the plaintiff applied for and received short-term disability leave, followed by Family and Medical Leave Act leave while she continued to pursue a remote work accommodation. In June, she was informed she “would not be considered for any remote work position as long as she was on leave,” per the complaint. When the plaintiff returned in August, she was allegedly one in fewer than 10 workers who were not allowed to work remotely. She resigned.
How the EEOC planned to respond to the COVID-19 pandemic’s widespread shift of the workforce to remote work — and the resulting suggestion of its growing suitability as a reasonable accommodation — has been of interest to businesses and employment law attorneys since the beginning of the pandemic.
Early calls from the agency indicate that employers need to seriously consider whether remote work would pose an undue hardship, the hurdle employers must jump to deny a reasonable accommodation under the ADA.
The Total Systems case has similarities to a 2021 case, EEOC v. ISS Facility Services, Inc., in which the EEOC alleged ISS Facility Services discriminated against an employee with chronic obstructive lung disease and hypertension by not allowing her the reasonable accommodation of working remotely two days per week (EEOC v. ISS Facility Services, Inc. No. 1:21-cv-03708 (N.D. Ga. Sept. 7, 2021)). Like in the Total Systems case, the job could be performed remotely, and many of the worker’s colleagues already worked from home. In December, the EEOC announced that ISS Facility Services had settled the case for $47,500.
In a discussion of the case at the Disability Management Employer Coalition’s annual conference last August, speakers from Jackson Lewis P.C. noted that employers should be attentive to the agency’s stance on the issue, asking themselves whether remote work would “work” for the employee and finding it especially hard to dismiss as an accommodation if the employee had already worked remotely at any point. The speakers said lawsuits involving remote work accommodations are likely to be on the rise.
A few attorneys who spoke at the American Bar Association’s Section of Labor and Employment Law conference Nov. 11 in Washington, D.C., reiterated the same point, pointing out that while employers may have “flexibility fatigue,” remote work remains a hot topic when it comes to the ADA.
In addition to denying the plaintiff’s reasonable accommodation request, Total Systems Services retaliated against her for “engaging in protected activity,” or requesting and using her FMLA leave, EEOC alleged — further complicating the lawsuit. “Employers who retaliate against employees for exercising their rights under the ADA, as Total Systems did here, expose themselves to additional liability under the statute,” Marcus G. Keegan, regional attorney for the EEOC’s Atlanta District Office, said in the agency’s release.
Total Systems Services did not immediately respond to a request for comment.