BFV Perspectives, Covid-19 Updates, Navigating HR, | Nov 29, 2022

ADA Update: Is On-Site Work an Essential Function?

One of the most interesting issues concerning the Americans with Disabilities Act (“ADA”) that arose from the COVID-19 pandemic is whether performing work on-site is an essential function of the job. In other words, if an employee was able to successfully work remotely during the pandemic, is on-site work post-pandemic essential?

On November 14, 2022, the Eighth Circuit Court of Appeals issued a decision indicating that successful telework could establish that continued remote work would be a reasonable accommodation.

In Mobley v. St. Luke’s Health System, Inc., No. 21-2417, 2022 WL 16955465 (8th Cir. Nov. 16, 2022), a former managerial employee, who was diagnosed with multiple sclerosis (MS), filed a lawsuit against his employer for failure to accommodate under the Americans with Disabilities Act. The key facts in the case are described below.

Background Facts
As a Patient Access Supervisor, the employee was responsible for training and managing a team of approximately 20 employees to assist patients over the phone in verifying insurance coverage and determining out-of-pocket healthcare costs. Most of the employee’s direct-reports telecommuted full time, although the lowest-performing members on the team worked in the office. The employer’s policy allowed managers to telecommute two days per week, however, the employee’s manager allowed his direct-reports additional teleworking days on a case-by-case basis.

After several years of employment, the employee was diagnosed with MS. As his MS progressed, the employee began to have difficulty walking, standing, and breathing, and experienced fatigue and burning sensations in his eyes and hands, particularly when his MS flared.

The employee requested to telecommute when he experienced flare-ups of his MS. The employer refused the request as a blanket accommodation, but agreed to consider requests to telecommute on a case-by-case basis when he experienced flare-ups of his MS. The employer in fact allowed the employee to telecommute upon request. The employee resigned, however, as he feared that he was in danger of being discharged due to his condition.

The employee then sued his employer claiming, among other things, that the employer refused to accommodate him in violation of the ADA and state law.

The Court’s Decision
Despite the employer’s claim that it was necessary for the employee to be on-site to manage his direct reports, the court held that the employee could possibly show that he was able to perform the essential functions of his job through his proposed accommodation of teleworking while he experienced a flare-up of his condition.

Specifically, the court stated that by allowing the employee to consistently work remotely aside from his medical condition, the employer implicitly demonstrated a belief that he could perform his essential job functions without being in the office all the time. Moreover, while working remotely, the employee continued to receive positive performance reviews, reflecting that he was able to effectively supervise his employees despite not being on-site.

If a certain job function is truly important, an employer must act in a way that shows that the job function is essential. Therefore, anytime an employer allows an employee not to perform an essential job function, the employer should document that its decision to relax the requirement is temporary and does not suggest that working on-site is not preferred nor essential.  This includes making such documentation in performance evaluations.

Although the Mobley case did not involve remote work due to COVID-19, the court’s reasoning may indicate how a court will consider an employee’s claim that remote work is a reasonable accommodation if the employee can show that the employee successfully performed work while working remotely during the pandemic.

As always, please let me know if I can help.

BFV Perspectives, Covid-19 Updates, Navigating HR, | Nov 29, 2022
Kenneth N. Winkler
Kenneth N. Winkler

Kenneth Winklera shareholder at Berman Fink Van Horn, helps employers navigate the employment laws and regulations that govern the workplace.