How can you tell if in-office work is truly an essential function of an employee’s job?

Wait, Eric! Didn’t you blog about this yesterday?

Actually, yesterday’s post explored how you can tell if full-time work is essential to an employee’s job. But, to answer today’s question about in-office versus remote work, I’ll use the same Eleventh Circuit decision I addressed yesterday.

We have an employee on the evening shift diagnosed with a disability. They take FMLA leave, after which the employee requests (and the company approves) a temporary accommodation allowing them to work part-time and partly from home for several months. After extending the accommodation upon request a few times, the company eventually denies it and terminates the employee.

If the employee claims that the company violated the Americans with Disabilities Act by failing to continue to accommodate them with remote work, how can the employer successfully defend the claim and convince the court that the employee cannot perform the job’s essential functions because their position requires them to be in the office?

Let’s look at the job description, which should reasonably reflect the employer’s judgment. It says that “regular and consistent attendance and timeliness” is essential. A supervisor further attested that in-person work was essential to the plaintiff’s job.

Heck, even the plaintiff herself testified that the defendant wanted employees in her role in the office because drivers appreciated when they were physically present.

There doesn’t seem to be much doubt that in-office work is essential here. But let’s view it through a different prism. What would be the consequences of not requiring the plaintiff to work at the office?

Once again, the plaintiff’s testimony does the plaintiff in. The plaintiff testified that if the defendant approved the plaintiff to work from home every time the plaintiff was scheduled to work alone, the plaintiff would have still needed someone in the office to assist with unanticipated driver issues, retrieving keys, and finding trucks. Thus, the plaintiff’s admission that someone needed to be in the office when the plaintiff was scheduled to work alone undermines the argument that in-person work was not essential.

Remember, the ADA does not require an employer to reallocate essential functions of the job to accommodate an employee with a disability.

But what about COVID-19?

During the pandemic, the company unlocked doors to allow drivers to obtain keys. But ever since returning to in-office work, the company locked the office for added safety.

The plaintiff argued that the defendant should either unlock the doors or assign someone (else) to be there.

But “the bare feasibility of temporarily suspending a function in response to the COVID-19 pandemic,” noted the court, “does not demonstrate that the function was not essential.”

Any way you slice it on this particular set of facts, in-office work is essential. Therefore, the defendant need not accommodate the plaintiff with remote work.