Seyfarth Synopsis: In a recent win for employers, the Fifth Circuit clarified that opened-ended or unlimited requests to work from home are unreasonable under the Americans with Disabilities Act ("ADA") and may be rejected during the interactive process. In addition, the Court instructed lower courts to give preference over other factors to the employer's judgment about what constitutes the "essential functions" of a particular job.
In today's hyper-connected world, with more and more workers seeking to telecommute, the EEOC and plaintiffs' attorneys often take the position that working from home should always be a viable and obligatory accommodation under the ADA. Employers, especially those who allow limited telecommuting, often find themselves defending failure-to-accommodate claims after rejecting requests for unlimited telecommuting. Fortunately for employers, the Fifth Circuit recently ruled that in most cases employers do not have an obligation to allow telecommuting as a reasonable accommodation. In addition, the Court reaffirmed that, in determining what job functions are truly "essential," an employer's judgment takes precedence over all other factors.
This case makes clear that open-ended telecommuting is rarely required under the ADA, and it also reassures employers that it is their call which functions their jobs require. Because it's up to employers to determine the essential functions of employees' jobs, employers should take the time to reexamine their job descriptions, make sure they are up to date, and ensure that they accurately reflect the requirements of the job. This exercise will help employers navigate the interactive process when employees seek reasonable accommodations, and will assist employers in arriving at fair, reasonable, and defensible resolutions of disability-related issues.
In Credeur v. State of Louisiana, Renee Credeur, a former litigation attorney for the Office of Attorney General for the State of Louisiana (aka the Louisiana DOJ), brought suit against her employer for allegedly failing to accommodate her inability to work in the office following a kidney transplant, and for harassment and retaliation, under the ADA and the Louisiana Employment Discrimination Law.
In May 2010, Ms. Credeur underwent a kidney transplant and was granted an accommodation to work from home for approximately six months. She then returned to work in the office full time but three years later began experiencing complications. Starting in October 2013 and continuing through March 2014, because of ongoing medical complications, she was granted permission to work from home. In March 2014, the Louisiana DOJ told her that she would not be allowed to work from home indefinitely and that she was required to work in the office at least 3-4 hours a day. She did not return to work, however, but instead applied for and was granted FMLA and additional unpaid leave from April through August 2014. When her leave ran out in early August 2014, the Louisiana DOJ again asked Ms. Credeur to return to the office and notified her that litigation attorneys could not work from home indefinitely.
Ms. Credeur subsequently brought suit against the State of Louisiana, claiming that she should have been allowed to work from home indefinitely and as long as her doctors recommended it because working in the office was not an essential function of her job. The district court granted summary judgment for the State of Louisiana. On appeal, the Fifth Circuit affirmed the district court's decision, holding that the ADA did not require the employer to allow Ms. Credeur to work from home indefinitely.
The Court's Analysis of the Failure-to-Accommodate Claim
The Fifth Circuit analyzed whether regular office attendance was an essential function of the litigation attorney's job. Ms. Credeur argued it was not because she had successfully worked from home in the past, and that by crediting the DOJ's statements and rejecting her testimony, the district court had engaged in impermissible credibility determinations at the summary-judgment stage. In reaching a contrary conclusion, the Court first reaffirmed that "regular work-site attendance is an essential function of most jobs." This is especially true, the Court continued, when the position is interactive and involves a significant degree of teamwork.
To determine what constitutes an essential function, the Court noted that the ADA itself mentions only the "employer's judgment"—and any written job descriptions—on that issue. The Court also referred to the EEOC's ADA regulations, which identify several other factors, including the amount of time spent performing the particular function, the consequences of not performing it, and the work experience of past incumbents, among others. Importantly for employers, the Court explained that "we must give greatest weight to the 'employer's judgment.'" The Court further concluded that "[a]n employee's unsupported testimony that she could perform her job functions from home" is insufficient to avoid summary judgment.
With respect to the specific position at issue, the Court reviewed contemporary emails from DOJ personnel and consistent testimony of Ms. Credeur's supervisors to conclude that regular attendance in the office was an essential function of the litigation attorney job, that Ms. Credeur's continued absence from the workplace created significant problems for her department and prevented her from executing her work effectively and efficiently, and that her request to work from home on an open-ended basis was not reasonable.
Takeaways for Employers
The Fifth Circuit's decision joins an increasing number of courts holding that regular workplace attendance is an essential function. This decision also establishes that requests for unlimited or open-ended telecommuting in most cases is not a reasonable accommodation under the ADA. In addition, the decision emphasizes that courts must give weight to the employer's own judgment about what constitutes an essential job function. While helpful, employers will not be able to take full advantage of the ruling unless they have accurate, up-to-date job descriptions that identify the essential functions of the job—including factors requiring regular attendance at the workplace. Take this opportunity to examine and update your job descriptions.
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