Your business may not be in the clear yet from those early-pandemic discrimination claims

I’ve got good news and bad news.

There’s good news if you’re still clutching your pearls over some employee suing for failing to accommodate his disability around the start of the pandemic in 2020. If the employee hasn’t filed a charge of discrimination yet with the U.S. Equal Employment Opportunity Commission, then any Americans with Disabilities Act claims are time-barred.

That’s the good news.

The bad news — go ahead and pick up those pearls — is that state law claims may still have some shelf life.

For example, there’s a lawsuit pending in a Massachusetts federal court. The plaintiff alleges that he had to work remotely following a state order for non-essential businesses.

But when it was time to go back to work, the plaintiff, who suffers from high blood pressure, submitted a request to continue working from home. The plaintiff alleges that he could perform the essential functions of his job while working remotely and could continue to do so.

The court noted that the plaintiff’s requested accommodation seemed feasible for the defendant under the circumstances, given that the defendant created a process for requesting this specific accommodation and later granted the accommodation to two co-workers. Therefore, the court considered it plausible that the plaintiff’s request for a particular accommodation — working from home — gave the defendant notice that he required a “special accommodation” based on his medical history.

Further, the plaintiff pled in his complaint that the defendant did not attempt to engage in an interactive process with him to determine an appropriate accommodation but rather prepared to terminate the plaintiff if he did not report to the office.

It sounds to me like the complaint sufficiently pleads claims under state law for failure either to provide a reasonable accommodation or to engage in the interactive process.

More importantly for the defendant, the court agreed and denied its motion to dismiss the disability discrimination claims.

Employer takeaway.

Going back to the beginning of the pandemic, what’s done is done. But return-to-work issues continue to arise, and judges have become much more receptive to remote-work accommodations.

So, if you insist on having employees report to the office, make sure that you communicate that clearly. Also, update your policies, job descriptions, and the like to document.

Consistency is also crucial. By providing exceptions to some, the business exposes itself to potential failure-to-accommodate claims from others. It may also end up defending allegations of unequal treatment based on other protected classes.


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