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  • Courts Weighing In on Remote Work as a Reasonable Accommodation

    Among the many challenges employers have been addressing throughout the ongoing pandemic has been the ushering in of the era of the remote worker.  What was generally expected to be a temporary solution to a temporary situation has now imbedded itself in the strategic planning process of employers throughout the country.

    As employers are finding, many employees have taken a liking to remote work.  Further, its impact on worker satisfaction and productivity has rarely been disastrous, begging the question – how do we unring this bell?

    As we have known for some time, the EEOC has confirmed that employers are not required to make accommodations for employees who simply prefer to work remotely or are worried about themselves or a family member due to COVID. The tougher questions come up when an employee’s reluctance to return may be based on an underlying disability that is covered under the ADA.

    We are starting to get some perspective on how these questions may be interpreted by the courts.  Please continue to our blog to read about a recent Circuit Court ruling that denied an employee’s claim asking for remote work as a reasonable accommodation.

    10th Circuit Won’t Second-Guess Employer’s Decision Not to Grant Telework

    The ongoing COVID-19 pandemic has made telework much more common for many employees. As we begin to return to normalcy, workers may question whether they still need to be physically present at the workplace when telework has proven feasible. In most situations, the question is still up to you as the employer to answer. If you believe physical presence is valuable to the organization or the employee’s work, you may require the individual to work in person. The principle is highlighted in a recent decision from the U.S. 10th Circuit Court of Appeals (which covers Oklahoma, Kansas, New Mexico, Colorado, Wyoming, and Utah employers), in which a former employee claimed the employer had failed to accommodate her request for a flexible, work-from-home schedule.

    Schedule Accommodation, but with Conditions

    Joan Unrein was a clinical dietitian who became legally blind because of a form of macular degeneration. As a consequence, she could no longer drive herself to work, which involved a 120-mile daily roundtrip commute. She asked the hospital to permit her to work a flexible schedule dependent on her ability to secure rides to and from work. The hospital initially agreed to the schedule, but with conditions:

    • She was required to communicate with her supervisor about any necessary schedule changes; and
    • She was expected to be physically present at the hospital at least 32 hours per week.

    The hospital informed Unrein her on-site presence was required to provide quality dietitian services and ensure patient care wasn’t compromised. It also stated it reserved the right to end the flexible work schedule if it concluded at any time the accommodation:

    • Was unreasonable;
    • Unduly burdened other employees;
    • Reduced the quality of patient care; or
    • Risked her safety or that of others.

    Notably, she could perform the job duties when she was at work because the hospital had purchased magnification equipment enhancing her ability to read.

    The parties tried the flexible schedule for 15 months. It ultimately proved problematic because Unrein’s physical presence at the hospital was unpredictable. Her rides frequently were unavailable or would back out at the last minute, including in the winter when the weather was worse. She didn’t have public transportation between her home and the hospital and couldn’t arrange for a ride service. The hospital received complaints about her not being physically present, and it believed her erratic schedule contributed to low patient satisfaction scores.

    Accommodation Incompatible with Essential Job Functions

    The hospital informed Unrein it was ending the flexible work schedule, which led her to ask for full-time telework. The employer denied the request because her position required more than four hours of in-person, face-to-face interactions per day. It then placed her on full-time medical leave with an unknown return-to-work date. The arrangement continued even after she exhausted all of her leave.

    After seven months of full-time medical leave with no return-to-work date and after Unrein was approved for long-term disability and Social Security benefits, the hospital finally terminated her. Even then, it offered to continue discussing other accommodations with her and encouraged her to apply for other open positions for which she was qualified.

    Court Finds Telework Request ‘Unreasonable’

    Unrein sued the hospital, and the case eventually made its way to the 10th Circuit.

    The 10th Circuit noted “courts must give consideration to the employer’s judgment as to what functions of a job are essential.” They generally won’t “second-guess the employer’s judgment when its description is job-related, uniformly enforced, and consistent with business necessity.” The appellate court then found no error with the lower court’s conclusion that Unrein’s job duties required her to be “physically present at the hospital for at least four hours per work day and to have a set and predictable schedule to ensure quality patient care.”

    The 10th Circuit determined Unrein’s request for telework was unreasonable “both as a matter of law and common sense.” It noted an employee can’t legally make a reasonable request to be relieved from an essential job function. In other words, an essential function doesn’t have to be eliminated as an accommodation, which is exactly what she was requesting.

    The 15-month period when Unrein was permitted to work the flexible schedule proved she couldn’t guarantee “when, if, or how long she could be physically present at the hospital on any given day.” She was thus seeking not to be required to be physically present at the hospital on a set, predicable schedule, which the court said was “an unreasonable accommodation as a matter of law.”

    The 10th Circuit addressed the transportation issue directly. It said transportation to and from work isn’t an essential function of the position Unrein held, and the hospital had no legal obligation to accommodate her commuting barrier. The issue was a problem outside of the workplace and one over which the employer had no control. The barrier was one she could have eliminated by, for example, moving closer to the hospital, but she hadn’t done so.

    The appellate court found no discrimination existed in how the hospital addressed Unrein’s disability and work situation, noting the Americans with Disabilities Act (ADA) “does not require the (hospital) to accommodate [her] transportation barrier, so her request for a flexible schedule was unreasonable.” Unrein v. PHC-Fort Morgan, Inc., Case No. 20-1219, U.S. Court of Appeals for the 10th Circuit.

    Bottom Line

    Unrein’s case provides clarity for employers addressing flexible telework requests, which are becoming more frequent since the pandemic. In addition, you should take note of how the hospital approached its accommodation obligation:

    • The hospital tried the flexible work schedule Unrein requested but also clearly informed her of its expectations under the approach, including specific business reasons why her presence in the workplace was necessary.
    • It then offered an extended period of leave and encouraged her to apply for other positions.

    The case provides a good example of the many and various tools you can use to satisfy your accommodation obligations.

    Article courtesy of content partner BLR.  Author, Tony G. Puckett is an attorney in the Oklahoma City, Oklahoma, office of McAfee & Taft.