Suit Shows That Employers Must Engage in Interactive Dialogue

April 28, 2023

Return-to-office Mandates and Related Woes


By Trevor Brice, Esq.

As pressure increases on companies to have an in-person presence post-pandemic, many companies have issued return-to-office mandates. Some of these, if they are not heeded by employees currently working remotely, can result in severe penalties, including loss of compensation, bonuses, even termination.



While these companies can impose these penalties on their wayward employees, it is now the time to remember one of the reasons why employees request to work from home: as a disability- or age-related accommodation.


On March 28, the Equal Employment Opportunity Commission (EEOC) announced suit against an employer who disciplined an employee in relation to one of these policies. This serves as a reminder of what employers’ responsibilities are to employees with age- or disability-related accommodation requests, despite being able to pressure employees to come back to the office.

 

COVID-19 Policies and Protected Class

In general, employers can impose any sort of discipline or policy on their employees. However, there are exceptions to this general rule, specifically that employers cannot discipline or impose policy that is either directly or indirectly based on the employee’s protected class (e.g., race, color, disability, age, sex, or ancestry).


As we come out of the COVID-19 pandemic, most employers are setting up policies mandating that employees come back to the office, some of them with penalties attached if employees do not comply. For example, Apple recently threatened disciplinary action for employees that are not coming into the office at least three days per week. Policies like these are facially neutral and non-discriminatory in their purpose. Every employer has a legitimate business interest in enforcing attendance, and policies like these have become more commonplace.


However, these policies run the risk of disability or even age discrimination. Some employers might ask why this is the case if they are enforcing a neutral policy. The usual issue will be that a policy like this will be imposed on an employee who is older or has disabilities that make them more at risk of contracting COVID-19. As such, when a policy like this is imposed, the employee will ask, due to their disability or age, to continue to work from home as a reasonable accommodation. If and when this happens, employers have a duty to engage in an interactive dialogue with the requesting employee and try to fashion an accommodation that will allow the worker to continue their work without undue hardship to the employer.


As long as this conversation, the interactive dialogue, is had with the requesting employee, it will be difficult for the employee to say that they have been subject to discrimination or that the employer failed to provide a reasonable accommodation. However, the problem arises when the employer does not initiate this conversation.

 

The EEOC Lawsuit

On March 28, the EEOC sued a company for allegedly denying repeated requests by an employee for remote work as a reasonable accommodation due to the increased risk of COVID-19 and further was alleged to violate the law by retaliating against the employee for taking medical leave to avoid exposure.


The facts in the case, EEOC v. Total Systems Services Inc., involve a customer-service representative who repeatedly requested to work remotely as a reasonable accommodation starting at the beginning of the pandemic in 2020 to decrease the risk of her exposure to COVID-19. The employer, in response, without engaging in an interactive dialogue with the disabled employee, repeatedly denied the requests despite granting remote-work requests to other employees.


While there has not been a ruling in this case yet, it is clear why the EEOC sued the company in question. As a reminder, when an employee requests a reasonable accommodation, the employer has a duty to engage in an interactive dialogue with the employee and attempt to come up with a reasonable accommodation that does not impose an undue hardship on the employer. Here, the employer did not attempt to engage in an interactive dialogue, denying the request (in this case, repeatedly) outright.


Further, even if the company had attempted to engage in an interactive dialogue with the disabled employee (which it did not), the employer would still potentially be liable because it would be more than likely that the employer could not show that the accommodation request was an undue hardship.


As the EEOC’s lawsuit notes, most of the employee’s department was allowed to work remotely, despite denying the employee’s request to also work remotely. The company could have possibly shown that the employee’s request was an undue hardship if other employees in the employee’s department were not allowed to work remotely or if a compelling reason was given why the employee and other employees in her department needed to be on site. However, this was not the case here.

 

Conclusion

As it becomes more and more commonplace for employers to require their employees to come into the office post-pandemic, there will increasingly be more litigation from employees who suffer from disabilities or are older, who ask to be given accommodation to work from home in order to avoid COVID-19 exposure.


As shown above, employers, once a reasonable accommodation has been made, must engage in an interactive dialogue with the employee to see if there is a reasonable accommodation that can be granted without undue hardship. It is possible to show that the employee’s request is an undue hardship, but there needs to be an interactive dialogue with the employee first.


If your company is imposing these return-to-work policies and it is questionable whether there is an undue hardship with an employee’s request for a reasonable-accommodation request, it is prudent to seek out representation from employment counsel.


This article was published in the May 1, 2023 edition of BusinessWest. Click here to visit their website!

Can I Fire Someone for That? Common Myths That Get Employers Sued

By The Royal Law Firm • August 19, 2025
Employers regularly wonder: “Can I fire someone for that?” You might assume the answer is simple, especially in an at-will state like Massachusetts. But the reality is more complex. Missteps can land your business in court. Here’s how to avoid them and keep your company focused on growth, not litigation. Myth: “At-Will Means Any Reason Goes” At-will employment allows termination without contractual cause. Yet anti-discrimination laws and retaliation protections still apply. Even a valid reason, like poor performance, becomes risky if the employee recently complained about harassment, requested an accommodation, or reported a safety issue. Terminating soon after a complaint invites legal trouble. For example, consider firing Sarah for repeated tardiness. But what if she reported sexual harassment a few weeks earlier? Timing alone can create exposure. Document performance issues as they arise. Also, check if the employee recently returned from Family and Medical Leave (FMLA) or Paid Family and Medical Leave (PFML). A Springfield auto repair shop faced a claim after firing a worker the day after he returned from PFML to care for his newborn. The company blamed tardiness, but the timing triggered months of legal headaches. Myth: “No Documentation Needed” Some employers assume that no paperwork is necessary under at-will rules. That approach creates unnecessary risk. Without records, even lawful firings appear questionable. Weak evidence damages credibility. Imagine Tom, a low performer who never received formal feedback. If you fire him after years of positive reviews, expect scrutiny. Always provide timely written warnings and accurate performance evaluations. Keep emails, attendance records, and coaching notes. Would your records persuade a jury that the termination was justified? Myth: “We Treated Everyone Fairly” Fair treatment requires consistency. If one employee is fired and another is only warned for the same violation, questions follow. Consider two salespeople, Mike and Jose, both caught inflating sales numbers. Mike receives a warning. Jose gets fired. If Jose claims racial bias, inconsistent discipline strengthens his argument. Review prior disciplinary decisions. Can you show a clear record of equal treatment? Myth: “We Can Share the Reason Widely” Managers sometimes explain a termination too broadly, believing transparency protects the company. In reality, public disclosure creates legal risk. An employee fired for theft sued his employer after leadership announced it to the entire staff. Even truthful statements, shared excessively or with ill will, can spark defamation claims. A local example: a Chicopee retailer emailed all employees naming a worker fired for alleged cash shortages. That email became Exhibit A in court. Limit disclosure to those who truly need to know. Avoiding Retaliation Claims Retaliation is the most common EEOC claim. Firing someone after they complain about discrimination, request leave, or raise pay concerns often leads to lawsuits. Subtle actions can count too—cutting hours, assigning undesirable shifts, or excluding them from meetings. Did Lisa report a wage issue last week? If she now gets the worst shifts, her attorney will call it punishment. Train managers to pause and ask: “Does this look like payback?” In one Springfield restaurant, a server who complained about tips was fired days later for “attitude.” The MCAD viewed the timing as retaliation, and the case settled quickly. Managing the Termination Meeting Professionally How you fire someone matters. Keep the meeting short and calm. Speak plainly. Avoid debate. Bring a neutral witness, usually HR. Disable system access and collect company property immediately. For remote workers, coordinate IT to end access during the call. Have you prepared your team to stay composed when an employee gets angry or upset? A concise, professional exit reduces emotion and litigation risk. Reducing Risks Before They Occur You can prevent most legal problems with proactive steps. Train managers to document consistently. Encourage employees to raise concerns early, and respond appropriately when they do. Also, follow Massachusetts requirements: final wages and accrued vacation must be paid promptly, sometimes the same day. Missing or delaying a payment can trigger penalties. Review whether your managers apply standards uniformly. Track disciplinary trends by department or supervisor. In one Holyoke warehouse, inconsistent discipline across shifts led to multiple claims that could have been avoided with routine audits. Quick Pre-Termination Checklist Document the issue in writing. Confirm whether the employee recently exercised protected rights (complaint, FMLA, PFML, workers’ comp). Ensure similar cases were handled consistently. Complete a fair investigation and allow the employee to respond. Prepare final pay and unused vacation in compliance with Massachusetts law. Bottom Line Employee terminations happen. Legal trouble does not have to. Careful documentation, consistent actions, and thoughtful communication protect your business. Before acting, stop and ask: have we done this right? Taking these steps helps you confidently answer, “Can I fire someone for that?” That answer should never rest on guesswork. Michael P. Lewis, is an attorney who specializes in labor and employment-law matters at the Royal Law Firm LLP , a woman-owned, women-managed corporate law firm that is certified as a women’s business enterprise with the Massachusetts Supplier Diversity Office, the National Assoc. of Minority and Women Owned Law Firms, and the Women’s Business Enterprise National Council. If your business has any questions on this topic or any other matters, please do not hesitate to contact the attorneys at The Royal Law Firm at 413-586-2288. Michael P. Lewis wrote this article which was featured in BusinessWest. Click here to visit their website.

The Royal Law Firm Attorneys Receive Finding of No Reasonable Cause at CHRO.

By The Royal Law Firm • August 18, 2025
Royal attorneys successfully obtained a dismissal at the Connecticut Commission on Human Rights and Opportunities. The Complainant alleged discrimination based on race, color and mental disability. Royal attorneys argued that the Complainant failed to establish a prima facie case of discrimination and complainant could not prove that they experienced an adverse employment action. The CHRO agreed with our argument and dismissed the case against our client due to a lack of reasonable cause.