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The Equal Employment Opportunity Commission (EEOC) recently announced it was suing the United Labor Agency (ULA) for allegedly violating the Americans with Disabilities Act (ADA). According to the EEOC, the ULA impermissibly denied the telework accommodation request of an employee with breast cancer. The employee requested to continue remote work after the ULA ended COVID-19-related telework and announced it would require employees to return to the workplace.  

The lawsuit serves as a reminder that employers should engage carefully in the interactive process when responding to requests for telework as an accommodation if they allowed or required telework because of the pandemic. 

The EEOC alleges that the ULA employee successfully worked for the company for years, including remotely during the pandemic. In March 2021, the employee was diagnosed with breast cancer and took several months of leave to receive treatment. In January 2022, she was cleared to return to work around the same time the ULA announced that it was requiring employees to return to the workplace. She sought an accommodation of continued remote work through May 2022 while she was still immunosuppressed due to ongoing treatment. The ULA allegedly denied her request.  

Although the employee initially returned to in-person work, she eventually left the company. According to the EEOC’s allegations, the ULA’s actions violated the ADA. 

This is not the first time the EEOC has brought a lawsuit under these circumstances. In December 2022, the agency settled a similar case: An employer required employees to work remotely during the pandemic, asked employees to return to the worksite full-time, and disallowed an employee with a pulmonary condition from continuing remote work. The EEOC sued the employer, who later agreed to pay $47,500 in damages to the employee, train its employees on the ADA, change its policies, and allow for EEOC monitoring.  

These lawsuits illustrate a pattern that is becoming common as the COVID-19 public health emergency comes to an end: (1) an employer allowed (or required) employees to work remotely during the pandemic; (2) the employer implemented a return-to-office policy; and (3) an employee requested continued remote work as a reasonable accommodation under the ADA. There is no hard rule governing the situation.  

EEOC guidance has taken the position that successful pandemic-related remote work may make telework a reasonable accommodation, even if it was not before the pandemic. Recent court opinions addressing this issue have not provided concrete answers.  

Some courts have concluded telework must be provided, while others have concluded telework does not need to be provided, depending largely on the job being performed. Courts ultimately perform a fact-intensive, individualized inquiry when reviewing an employee’s accommodation request. That inquiry entails an in-depth analysis of the essential functions attributed to the job at issue and will vary depending on the job.   

Employers Council has the resources to help you analyze these situations and navigate this emerging area of the law. If you have any questions, please contact our Member Experience Team.