Remote Control: When Employers Can Reject Work-From-Home Accommodation Requests

Quick Hits

• An employee who cannot perform essential job functions, even with a reasonable accommodation, is not a “qualified individual” under the ADA.
• The ADA does not require an employer to provide wholly remote work as a reasonable accommodation if a position requires in-person attendance to perform some essential functions.
• Employers need not extend additional accommodation offers after an employee rejects an initial reasonable accommodation.

Background

After an accounting assistant was diagnosed with aggressive breast cancer, her employer accommodated her request for fully remote work. This arrangement was feasible because business had slowed dramatically during the initial outbreak of the COVID-19 pandemic, and a coworker was able to cover the essential in-person functions of her job. However, as business recovered, that arrangement became unsustainable.

The employer proposed transitioning the assistant to a hybrid role: two days per week in the office for four to five hours to handle her essential in-person functions. Although the employee agreed, she failed to return. Two months later, the employer again proposed, and the assistant again agreed, to the hybrid schedule. But she still did not return, and she complained to the human resources manager about being required to come back. After the human resources manager confirmed that many of the assistant’s duties needed to be done in person, she directed the assistant to return to the office.

The assistant briefly returned to in-person work before calling out sick. She then had surgery and provided a doctor’s note excusing her from work for two weeks. The employer contacted her to plan for her return to work as specified in the note. She did not respond, did not return on the specified date, and did not notify anyone of her absence. The employer terminated her employment for job abandonment. She then sued, alleging violations of the ADA, including disability discrimination, failure to accommodate, and retaliation.

Legal Framework Under the ADA

The ADA provides employment protections to a “qualified individual” with a disability—meaning an individual who, with or without reasonable accommodation, can perform the essential functions of his or her job. While the ADA does not require an employer to excuse performance of an essential function, if a reasonable accommodation would enable the individual to perform one or more essential job functions, the employer must provide such accommodation absent an undue hardship. Importantly, the determination of which job functions are essential normally belongs to the employer and will not be second-guessed by a court, so long as the employer’s assessment “bear[s] more than a marginal relationship to the job at issue.”

Both the employer and the individual share an obligation to determine whether any reasonable accommodation would allow the individual to perform the essential functions of the job. This may require them to engage in an interactive process, and an individual who refuses to participate in the process will lose the protection of the ADA.

The Court’s Opinion

In affirming the district court’s grant of summary judgment in favor of the employer, the Fourth Circuit made the following key rulings:

• During peak periods in a cyclical industry, functions may become more critical. As discussed in a prior article, changing circumstances may render previously reasonable accommodations unreasonable.
• An employee who cannot perform in-person essential functions with or without accommodation is not a “qualified individual” under the ADA. As the court noted, “a regular and reliable level of attendance is a necessary element of most jobs.” The employee acknowledged that certain functions of her role—entering invoices, printing checks, preparing packets for the general manager’s signature, assembling envelopes for mailing, and filing—as set forth in her job description, required her to be in the office.
• An employer is not required to provide another reasonable accommodation offer after an employee rejects “an obvious and helpful offer.” In many situations, more than one reasonable accommodation may be available, and the court emphasized that employers retain “ultimate discretion” over the choice of a reasonable accommodation. An employee who rejects the offered reasonable accommodation cannot then hold the employer liable for violation of the ADA.
• An employer’s accommodation efforts may matter. In this case, the employer “frequently went beyond the ADA’s baseline” in its efforts to accommodate the assistant—working with her to establish a mutually agreed-upon accommodation, reoffering the accommodation when she failed to comply with it, and repeatedly reaching out despite her continued lack of communication. The court noted that “[t]o hold the employer liable for disability discrimination, after all these commendable efforts at bilateral cooperation, would do a disservice to [the employer] and the ADA alike.”
• An employer’s continued engagement in the interactive process after an employee engages in protected activity undermines any claim of retaliation. Although only one month lapsed between the assistant’s protected activity—her complaint to human resources—and her employment termination, the court found other factors undercut her retaliation claim. In particular, the court pointed to the employer’s continued engagement in the interactive process after the protected activity occurred.

Takeaways for Employers

This case offers several key considerations for employers.

• Employers should consider clearly defining and documenting essential job functions. Job descriptions ideally should accurately reflect which duties must be performed in person and why. In Haggins¸ the court relied heavily on the job description and the employee’s own acknowledgement that certain tasks required physical presence.
• Accommodations may evolve with business needs, and they may become unreasonable as circumstances change. Employers may wish to periodically reassess accommodations to ensure they remain viable.
• It may be wise to document the interactive process thoroughly. The employer’s extensive efforts to work with the employee were instrumental in the court’s decision. A robust paper trail can demonstrate good faith and undercut an employee’s claims.
• Employers are not obligated to provide multiple accommodation options if an employee rejects a reasonable one that truly enables the employee to perform the essential functions of the job.
• Continuing the interactive process after an employee engages in protected activity can help defeat a retaliation claim by showing that the employer’s actions were driven by legitimate business concerns and not by animus.

Ogletree Deakins’ Leaves of Absence/Reasonable Accommodation Practice Group will continue to monitor developments and will provide updates on the Employment Law, Leaves of Absence, Return to Work, and State Developments blogs as additional information becomes available.

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