Recent federal court decisions provide insight on when employees’ physical presence at the job represents an “essential function,” and how pandemic-era policies might be viewed moving forward.
Jonathan F. Whalen, Esq., Campbell Durrant, P.C. | October 2023
Although the days of widespread uncertainty, strict lockdowns and mask mandates seem to be behind us, it is evident that remote work is here to stay, at least in some form. In the wake of the COVID-19 pandemic, many employers have moved to “hybrid” systems involving both in-office and remote work, while others have gone almost entirely remote. Despite this, it is undoubtedly the case that some jobs simply are not able to be undertaken remotely. This is particularly true for many services that local governmental employers provide, such as public transportation, 911 call centers, law enforcement, paid firefighting services, corrections, the functioning of the courts, etc. Nonetheless, one of the most significant concerns associated with the widespread degree of remote work during the pandemic was how employers would navigate requests for continued remote working as an ADA “reasonable accommodation” once the exigencies of the pandemic had passed.
Notably, “remote work” has been, in some form, a potential “reasonable accommodation” under the ADA since well before the onset of the COVID-19 pandemic. Briefly, the Americans with Disabilities Act (“ADA”) mandates that covered employers provide “reasonable accommodations” to “qualified” individuals with “disabilities” (including job applicants), unless to do so would cause an “undue hardship.” The ADA is designed, however, to enable disabled employees to perform “essential job functions”—it is not designed to exempt employees from performing essential job functions. Employers took note, however, of pandemic-era guidance from the Equal Employment Opportunity Commission, which stated that remote working practices instituted during the COVID-19 pandemic “could serve as a trial period” that might demonstrate whether or not an “employee with a disability could satisfactorily perform all essential functions while working remotely.” In other words, if employees worked remotely during the pandemic, and particularly if it went reasonably well, how could an employer later assert that “physical presence” is “essential” to the job? To avoid (or to at least guard against) this potential issue, employers were advised to make clear that remote work during the pandemic represented a “temporary” response to the extraordinary circumstances presented by the pandemic and that its institution did not mean that the essential functions of an employee’s job could be performed remotely on a permanent basis. It remained unclear, though, precisely how such requests would be evaluated once the COVID-19 era had passed.
This summer, however, two federal courts squarely addressed post-pandemic requests for remote work as an ADA accommodation and/or directly confronted arguments from plaintiff employees that pandemic-era remote work demonstrated that “physical presence” did not represent an “essential job function.” In Jordan v. School Board of the City of Norfolk, the U.S. District Court for the Eastern District of Virginia addressed a request for remote work as an ADA accommodation for an elementary school principal who had, like other school employees, been permitted to work remotely during the COVID-19 pandemic. Prior to the school’s return to in-person operations, the principal requested to continue working remotely due to her asthma and the allegedly poor air quality present in the school building. While the school offered alternative accommodations, it denied the request for continued remote work, arguing that the principal’s “physical presence” was an essential function of the position. The principal cited “her own experience working remotely during the COVID-19 pandemic as evidence that she could perform the essential functions of her job fully remotely” even after in-person operations had resumed. However, the district court rejected the notion that the principal could “work remotely again and accomplish all essential functions of her position” merely because the principal had worked “remotely during the COVID-19 pandemic.” Instead, the district court explained that while “employers permitted telework and frequently excused performance of one or more essential functions” during the pandemic, such “temporary pandemic-related modifications” did not mean that essential job functions had been abrogated or had “somehow changed.” Because the principal’s pre-pandemic job functions included numerous tasks that could only be completed in-person, and because those tasks resumed following the pandemic, the court concluded that the principal was properly “required to resume her job’s essential functions as they were in the pre-COVID era.”
On the other hand, however, in Montague v. United States Postal Service, the Fifth Circuit ruled that there existed a genuine issue of material fact concerning whether an employee’s request to work remotely represented a reasonable accommodation under the ADA. While the Fifth Circuit acknowledged that it is the “general consensus among courts” that “regular work-site attendance is an essential function of most jobs,” it emphasized that the reasonable accommodation inquiry depends on the specific factual circumstances of each case. Thus, because an employee who worked in the same position as the plaintiff had been permitted to work remotely, and because the plaintiff’s predecessor had, in fact, been permitted to work remotely on a full-time basis, the Fifth Circuit rejected USPS’s motion to dismiss and acknowledged that a jury could conclude that remote work, in those circumstances, represented a reasonable accommodation.
Thus, whether remote work must be offered as an ADA “reasonable accommodation” will depend heavily on the factual circumstances of each case. While the Jordan decision makes clear that an employer can require in-person work, even if it permitted remote work during the pandemic, so long as “physical presence” is necessary for the performance of essential job functions that may have been suspended or modified during the pandemic, other post-pandemic accommodation requests could be viable if similarly-situated employees have been permitted to work remotely and/or if the employer cannot adequately demonstrate the “essential” nature of physical presence in relation to an employee’s job. Accordingly, employers should carefully review their job descriptions and should undertake thorough evaluations concerning whether in-person work is “essential” to a given position. And of course, employers must never lose sight of the need to engage in the interactive process in every instance that an employee requests an accommodation.