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  • Work from Home as a Reasonable Accommodation – Maybe; Maybe Not

    Destined to be one of the lasting takeaways of the COVID era is the absolute necessity of having a solid, consistent, realistic and (somehow) compliant policy addressing Reasonable Accommodation.  We expect that most HR professionals have become versed in this lately, and have made an effort to develop a written policy and train supervisors and managers on how to deal with requests as they come up.

    It is certainly evident at this point that there is no one-size-fits-all approach that will make accommodation requests simple.  Each has been, and will continue to be, unique unto itself.  The popularity of work-from-home opportunities has served to offer a clear path to accommodation in some cases; but in other cases, a vexing challenge to maintaining productivity and equal treatment.

    The EEOC has long taken the position that working from home can be a reasonable accommodation under the ADA, but reasonableness depends on the circumstances. If on-site work isn’t essential to a particular position, a telework request may be reasonable. But even if an accommodation is reasonable, it can still be denied if it would amount to an undue hardship for an employer. Courts tend to be less protective of accommodation requests seeking indefinite remote work as opposed to remote work on a limited and defined basis.

    For an examination of a recent case in which remote work was found to not be a reasonable accommodation, please continue to our blog.

    Remote Working May Not Be Reasonable Accommodation

    Working remotely has become commonplace during the COVID-19 pandemic, which raises the question: Must you consider remote working to be a reasonable accommodation under the Americans with Disabilities Act (ADA)? A recent decision from the U.S. 8th Circuit Court of Appeals (which covers Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota employers) indicates telecommuting isn’t automatically considered a reasonable accommodation.

    Facts

    Mary Lane, who is an African American, worked for Chicot County Judge Mack Ball, Jr., for several years. She had numerous responsibilities, some of which required direct interaction with the public.

    After Lane was diagnosed with breast cancer, Judge Ball approved extended periods of medical leave. When it was time for her to return, she asked to work from home during the day and come into the office only at night. Judge Ball denied the request.

    When Lane didn’t return to work at the end of the leave, Judge Ball terminated her. Not long after, she sued the judge and Chicot County for race and disability discrimination.

    Office Presence is Essential Function

    The 8th Circuit noted Judge Ball’s refusal to let Lane work modified schedule wasn’t actionable (or pursuable in court) under the ADA without “a facial showing that [she] was able to complete the essential function[s] of [her] job with or without an accommodation.”

    One “essential function” Lane had to perform, however, was handling questions and requests from members of the public, which she couldn’t do outside of business hours or from home. Thus, she couldn’t perform the function remotely, and her request couldn’t meet the test of a reasonable accommodation.

    The 8th Circuit went on to explain a task may be an essential function even though the employee performs it for only a few minutes each week. In addition, it emphasized an employer isn’t required to reallocate or eliminate an essential function as an accommodation for a disabled employee.

    Moreover, to the extent Lane argued she could have done the job without an accommodation, the 8th Circuit observed her own statements were to the contrary. For example, she stated at one point she needed to spend “pretty much” the entire workday lying down.

    Race Discrimination Claim Rejected

    The 8th Circuit found Lane’s remaining claims fared no better. She tried to prove the race discrimination claim (which was based on the denial of an accommodation) by identifying a similarly situated employee who received more favorable treatment. For comparison’s sake, she identified Judge Ball’s administrative assistant, who had a modified work schedule similar to the one Lane had requested.

    The appellate court ruled, however, the assistant wasn’t “similarly situated in all relevant respects” because her job involved less interaction with the public and she had worked out the flexible schedule before she was hired. Thus, the employees had “different jobs” with “different” requirements.

    Nor could Lane meet the minimum test to prove her firing was discriminatory. She was unable to identify any employee, let alone one of a different race or without a disability, who was retained despite failing to return to work after taking medical leave. Accordingly, the court could identify no evidence of discriminatory treatment supporting any of her discrimination claims.

    Bottom Line

    The case serves as a reminder that an employee’s right to a reasonable accommodation isn’t unlimited. The accommodation must enable the person to perform all her essential functions. You are not required to accept an accommodation that permits an employee to perform some essential functions. Rather, it must enable her to perform all the functions.

    Moreover, removing or reallocating essential functions to coworkers isn’t enabling an employee to perform them. Instead, it’s excusing her from completing them. While excusing an employee from performing job functions lies at the heart of the Family and Medical Leave Act (FMLA), it’s contrary to the ADA, which requires an accommodation to enable performance and not provide a free pass.

    Article courtesy of content partner BLR.  Author Steve Jones is an attorney with Jack Nelson Jones, P.A., in Little Rock, Arkansas.