COVID-19 forced employers to adapt to employee requests to continue to work from home. The workforce is still reeling from the consequences of that adaptation. While some employers have made a work from home option permanent for their employees, others have chosen to implement a mandatory return to work. When employees receive the return-to-work notification, they will undoubtedly have questions. Some may request accommodations and/or exemptions. When employers receive such requests, they should be careful in how they handle them. A recent Appellate case, Lin v. CGIT, Inc., which is now pending in the United States District Court for the District of Massachusetts, serves as a reminder of how quickly a request for an accommodation can turn into involved litigation.[i] There are several issues before the U.S. District Court in this matter.  However, the discussion here will focus on the issue of an accommodation for associational disability, which is the disability of someone with whom the plaintiff is associated, to wit, his mother.  We will examine what, if anything, we can glean from the court’s opinion on how businesses can get out in front of the issue of associational disability.

Facts

The plaintiff worked for defendant for nearly 15 years. He was terminated on March 31, 2020.  Plaintiff started working from home on March 16, 2020. Nine days later, employees were instructed they would be required to return to work before the end of the month. For employees who wanted to “continue working from home, [employer requested they] submit a form and obtain approval…”[ii] Plaintiff did so. His request was denied, and he was told he would have to return to work on March 30, 2020, despite other employees in the department and company having exceptions made for them.

Plaintiff did not return to work as requested and was fired. According to his manager, “…he ‘needed to make an example’ of [p]laintiff and … [d]efendant wouldn’t permit people to take sick or vacation time because they were concerned about coming in to work in [d]efendant’s office location due to COVID-19.”[iii]

Court’s Analysis

The plaintiff wanted to work from home to protect his mother, who was elderly and had underlying health issues. The defendant “contend[ed] such an associational discrimination claim …[was]…not cognizable under Massachusetts law.”[iv] However, the court found the case defendant cited did not address the question at issue here.

In examining employment accommodations, the court requires a plaintiff show two things:

…not only that the proposed accommodation would enable [him] to perform the essential functions of [his] job, but also that, at least on the face of things, it is feasible for the employer under the circumstances. Reed v. LePage Bakeries, Inc., 244 F.3d 254, 259 (1st Cir. 2001).

…Second, he must show that his request for an accommodation is sufficiently direct and specific, giving notice that [he] needs a special accommodation. Id. at 261 (quoting Wynne v. Tufts Univ., 976 F.2d 791, 795 (1st Cir. 1992)); see also Miceli v. JetBlue Airways Corp. 914 F.3d 73, 82 (1^st Cir. 2019).

After reviewing those two factors, the court must then analyze whether the employer  fulfilled a further duty. According to the court here, which relied on Miceli, the employer “nonetheless ‘must make a reasonable effort to determine the appropriate accommodation … through a flexible, interactive process that involves both the employer and the qualified individual with a disability.’”[v]

Based on all the facts, the court here decided the plaintiff had sufficiently pled his “claims for failure to provide a reasonable accommodation and failure to engage in the interactive process.”[vi]

Discussion

The motion to certify the question to the SJC is still pending, as are the dueling dispositive motions in the U.S. District Court. Pandemic-based litigation is a hot topic, and courts’ opinions vary based on the allegations, facts, and many other variables. However, because the issue presented in this case is germane to at least two other cases currently in litigation,[vii] the courts may finally view it as ripe for adjudication.

So, what are the takeaways we can glean from the court’s decision? The court seemed to rely heavily on the fact that the plaintiff had shown he was performing his job duties while working from home during the COVID-19 pandemic. In addition, the court seemed to take into account how other employees had requested (and were granted) accommodations.

This case could present a bellwether for other jurisdictions where similar litigation is cropping up. If plaintiff prevails, any employer will need to be keenly aware of the implications for its workforce and may need to adjust policies to accommodate remote work.  In the event the defendant prevails, employers will face few or no legal pitfalls for not providing reasonable accommodations for associational disabilities.

Employers should consider the following given the court’s conclusions highlighted above:

1. Develop an accommodation policy in the workplace before the courts do it for you; and
2. Once an accommodation policy is in place, apply it equally and consistently across the board for all employees.

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Sources

[i] Lin vs. CGIT Sys., Inc., D. Mass., No. CV 20-11051-MBB (Sept. 21, 2021).

[ii] Id.

[iii] Lin vs. CGIT Sys., Inc., D. Mass., No. CV 20-11051-MBB (Sept. 21, 2021), citing Docket Entry # 1, p. 6, ¶ 36.

[iv] Id., citing Docket Entry # 7, p. 9.

[v] Id., citing Miceli, 914 F.3d at 82 (citation omitted); see also E.E.O.C. v. Kohl’s Dep’t Stores, Inc., 774 F.3d 127, 132 (1st Cir. 2014).

[vi] Id.

[vii]See Kurtovich v. Raytheon Technologies, Corp., C.A. No. 1:22-cv-11344 (denying motion for certification because the factual record was undeveloped); Pagan-Colon v. Walgreens of San Patricio, Inc., 697 F.3d 1, 19 (1st Cir. 2012).