An employee’s perception of the workplace is critical to gaining an accurate picture of what the actual workplace is like.
Do you agree?
If you answered yes, maybe one day you can serve on the Sixth Circuit Court Appeals, out of which a district court in TN issued this Americans with Disabilities Act opinion earlier this month. It’s a case involving a claims adjuster with mental impairments who alleged that pre-COVID-19, his former employer discriminated against him by not permitting him to work from home.
More precisely, the plaintiff claimed that the defendant discriminated against him in violation of the ADA when it did not permit him to continue to work from home after the company had already accommodated him with telework (and FMLA and LTD) for over a year.
The essential functions of a job.
As is often the case, these failure-to-accommodate claims hinge on whether the plaintiff is “otherwise qualified” under the ADA. Under the ADA, an employee is “otherwise qualified” for a position if s/he can perform the “essential functions” of the job with or without a reasonable accommodation.
In determining whether a job function is essential, courts often consider several factors like (1) the employer’s judgment as to which functions are essential; (2) the written job description; (3) the amount of time spent performing the function; (4) the consequences of not requiring performance of the function; (5) the work experience of past incumbents of the position; and (6) the current work experience of incumbents in similar jobs. In these situations, judges like to defer to juries to decide what job functions are essential. Why? Because many times plaintiffs and defendants cannot agree on what functions of the job (in this case, regular attendance in the office) are essential.
These cases are also suitable for juries where you have inconsistent testimony from the employer, like in the federal decision we’re discussing today. For example, take the plaintiff’s supervisor. He testified that having people in the plaintiff’s position collaborate at work leads to better results, and face-to-face interactions were necessary. But he also testified that the plaintiff could perform his job remotely and that “he was able to excel a bit more” when he worked from home.
So which is it?
Then you have bad job descriptions. In this case, the job descriptions of the inside claims adjuster and outside claims adjuster were identical, and the court was not crystal clear about which position(s) the plaintiff held. However, there was undisputed evidence that non-disabled outside claims adjusters could work remotely.
So why not the plaintiff? Especially when he viewed his position as one that he could perform remotely.
Does any of this sound familiar?
You’ve probably had employees working remotely for over a year by now. Does this mean that telework is automatically a reasonable accommodation for someone with a disability? The EEOC says no.
If you agree that regular attendance at the office should be an essential job function, make sure that your job descriptions reflect that. But, talk to your employees and managers first. You may learn from them that productivity increase when working remotely.
But, if you still insist on having people come to the office, you need to be consistent. Perhaps you continue to allow certain non-disabled employees to continue to telework post-COVID. Guess what? Telework just became a reasonable accommodation for someone in the same position with a disability.
You get the point—enough about telework.
It’s nearly time for The Employer Handbook Zoom Office Hours
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Join me and my special guests, Simone McCormick and Amy Epstein Gluck, to discuss all the privacy implications of vaccinations, health screening, and everything else COVID-related. Simone is not only a fantastic management-side employment lawyer but also a data protection/breach expert. Amy serves as employment counsel to both outside businesses and our law firm, FisherBroyles. You won’t want to miss this.
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It’s COBRA time. And who better to answer all of your American Rescue Plan Act COBRA-related questions than employee benefits superstars Mark Mathis and Bob Ellerbrock. Mark and Bob have over fifty years of employee-benefits experience between them. Good luck stumping them with your questions.
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