The government is helping workers with disabilities fight back against bosses during COVID

Last month, the federal government took a major step to defend American workers with disabilities during the pandemic.

In September, the U.S. Equal Employment Opportunity Commission (EEOC) — the federal body tasked with enforcing laws that prohibit discrimination in the workplace — filed its first lawsuits concerning employees’ requests for accommodations related to the ongoing COVID-19 pandemic.

“The EEOC wants to signal this is a new world,” Jonathan Mook, a disability law expert and attorney with DiMuroGinsberg in Virginia, told the American Independent Foundation. “This is going to be a new area of setting precedent in terms of what constitutes ‘reasonable accommodation’ under the ADA [Americans with Disabilities Act].”

The lawsuits mark the first time the federal government has legally intervened to defend Americans seeking workplace accommodations due to the higher health risks they face from COVID. Experts say these cases show the federal government wants to take a more active role in protecting workers’ health and safety as the pandemic rages on with no clear end in sight.

Disability rights advocates say the lawsuits could set a new precedent for workplace protections for decades to come.

The commission filed its first case on Sept. 7 on behalf of Ronisha Moncrief, a former health and safety manager in Georgia who worked for ISS Facility Services, a facility management company. According to the lawsuit, ISS allowed its employees to work remotely four days per week early on during the pandemic, but started requiring employees to return to work full-time in June 2020.

Moncrief, who has a pulmonary condition that causes her difficulty breathing and places her at greater risk of contracting COVID, requested that she be allowed to continue working from home two days a week. She also asked to take more breaks when working on-site.

The lawsuit claims that ISS denied Moncrief’s request and fired her shortly thereafter, despite granting similar accommodations to other employees. With its lawsuit, the federal employment commission is seeking back pay and damages for Moncrief, along with injunctive relief that would prevent ISS from denying similar requests in the future.

“Denying a reasonable accommodation and terminating an employee because of her disability clearly violates the ADA at any time,” the commission said in a statement. “In light of the additional risks to health and safety created by COVID-19, it is particularly concerning that an employer would take this action several months into a global pandemic.”

The Americans with Disabilities Act, the landmark 1990 law which prohibits discrimination based on an individual’s disability, requires employers to provide “reasonable accommodations” to employees who seek them due to qualifying medical conditions.

But determining what counts as a “reasonable accommodation” in the workplace can get complicated. That’s because each case hinges on the specific facts and circumstances of the given situation. Employees may request different types of accommodations, but they are still required to be able to perform the “essential functions” of the job.

“The question is, who gets to define what’s essential?” Ruth Colker, a professor at the Ohio State University’s Moritz College of Law, told the American Independent Foundation. “That’s going to be a tough issue for the courts.”

Historically, courts have deferred to employers in deciding what counts as an “essential function” of their workers’ jobs, and have generally sided with employers over employees in disputes concerning remote work.

But that precedent may be changing, as workplaces have increasingly shifted toward remote work for employees over the course of the pandemic.

“Employees have had an opportunity to demonstrate for a year and a half that they could perform the job well without being in the physical office,” Colker said.

In addition to the Moncrief case, the federal government filed two other lawsuits last month related to employee health and COVID-19.

The EEOC is representing a Texas pharmacy technician with asthma who said he asked to wear a mask while at work to protect himself. The lawsuit alleges his bosses prevented him from doing so, claiming it might give the appearance to customers that he was sick.

In meetings about the matter, his bosses “criticized and demeaned” him, according to the complaint, and “threatened him with termination.” Seeing no other option to protect himself from contracting the virus, the plaintiff quit his job. He is now seeing back pay, damages, and injunctive relief from his former employer.

The third lawsuit, also filed in Texas, concerns two baristas working at a coffee house chain who were told early in the pandemic that they were not allowed to return to work until a COVID vaccine was developed, despite their desire to do so.

“Employees cannot be refused the opportunity to work just because their employer believes it is protecting them from illness,” the EEOC said. “Absent a direct threat to the safety of themselves or others, employers cannot deny employment opportunities based on disability.”

Asked about the lawsuits, the plaintiffs in the cases either did not respond or declined to comment, citing the ongoing litigation.

Experts were split on how much to read into these first few lawsuits. Historically, cases that deal with disability law are treated on an individual basis and rarely result in decisions that would directly impact other workplaces and their employees.

“A precedent that says you don’t get to fire someone because you think they’re more at risk of COVID symptoms, that could be generalizable, that could help a large number of people,” Colker said. “But the reasonable accommodation cases often are more narrow and more fact-specific, and then it’s hard to know how to generalize them.”

Mook said these lawsuits are sending “a clear signal to employers that the EEOC is taking a look at this issue in particular, and they’ll put it up there on the list of higher priorities in pursuing investigations and potential lawsuits.”

These cases mark the first time the federal government has taken direct action on behalf of disabled Americans affected by the COVID-19 pandemic. Disability rights advocates, meanwhile, have been at the forefront of this fight for months.

In August, a group of 14 students with disabilities sued Texas Gov. Greg Abbott in federal court over his actions preventing school districts from requiring masks, claiming that violated their rights under the ADA. Now the EEOC is stepping in on a similar matter, meaning the students could feasibly point to the outcome of that case as precedent for their request in Texas.

Experts saw the EEOC lawsuits as part of a broader pattern of the Biden administration working to protect Americans’ health and safety amid a relaxing of public health precautions. Around the same time as the lawsuits were filed, for example, the U.S. Department of Education announced it would provide funding to a Florida school district that had been penalized by its Republican governor for requiring masks in the classroom.

“I’m happy to see the EEOC taking the lead in some enforcement action,” Colker said. “I do think that their involvement could certainly help some employers that are inclined to want to abide by the law do what I would consider the right thing.”

It’s unclear how big an impact these cases may have on the future of work. Still, disability rights experts and advocates are cautiously optimistic.

“I think the EEOC wants to now establish some law that will support a change in the nature of work,” Mook said.

Published with permission of The American Independent Foundation.