Quick Hits
- The U.S. Court of Appeals for the Third Circuit held in an August 2026 ruling that whether in-person teaching was an “essential function” of a professor’s job responsibilities was fact-dependent and, thus, an issue for resolution by a jury.
- Employers retain the right to choose among reasonable accommodations and need not grant an employee’s preferred accommodation where alternative accommodations are effective.
- Declaring that all remote work requests fundamentally alter the job may undermine an employer’s claim that it engaged in a good-faith interactive process, but may not by itself establish a failure to accommodate as a matter of law.
Background
In 2021, following the COVID-19 pandemic when all teaching was done remotely for some period, Kutztown University in Pennsylvania reopened its campus and instituted a policy requiring in-person teaching. An associate professor with an autoimmune disorder requested an accommodation of teaching remotely for four consecutive semesters. Her request for the first three semesters was denied due to the university’s blanket determination that remote teaching constituted a “fundamental alteration” of the university’s academic program, although the university’s reasonable accommodations policy required individualized assessments.
For the third semester, the university offered to let the professor teach behind a plexiglass podium, wearing a plexiglass face shield. For the fourth semester, the university offered a more extensive solution: the podium, a separate classroom entrance, limited student capacity, and enhanced air filtering. The professor rejected both accommodations, insisting that only remote instruction could adequately protect her.
The professor sued the university, including for violation of her rights under Section 504 of the Rehabilitation Act, which is the public-sector equivalent to the Americans with Disabilities Act (ADA). A federal district court granted summary judgment largely in the professor’s favor, finding no disputes of material fact under the applicable legal standards. The university appealed the district court’s ruling to the Third Circuit.
Legal Framework
Both the Rehabilitation Act and the ADA prohibit discrimination against qualified individuals with a disability. A “qualified individual” is one who can perform the essential functions of the job with or without reasonable accommodation. The U.S. Equal Employment Opportunity Commission (EEOC), which enforces both laws, has issued guidance indicating various factors may be considered in determining whether a function is essential, including the employer’s judgment, but also (as relevant here) written job descriptions and the actual work experience of those in the job.
Under both laws, an employer must provide reasonable accommodation, unless the accommodation would impose an undue hardship, meaning a significant cost or difficulty. Determining the appropriate accommodation involves a good-faith interactive process between the employer and employee.
The Third Circuit’s Ruling
The Third Circuit vacated most of the lower court’s summary judgment ruling and remanded the case for trial, finding disputes of material fact on several key issues. It affirmed summary judgment on one issue in the university’s favor—that the fourth semester accommodation was reasonable as a matter of law. Among the court’s key points:
- Whether a function is essential may be a fact-specific determination—at least in the Third Circuit. The Third Circuit took the position that “the essential function determination is a factual issue that ‘must be decided by a jury.’” It further noted the dueling facts here: although the university asserted that in-person presence was essential, there was no written policy to that effect, and the professor had taught some classes remotely for over a decade.
- A blanket denial of the requested accommodation is not helpful, but may not be determinative. Although the district court found the university’s “blanket policy” prohibiting remote work to violate the law, the Third Circuit disagreed. Rather, like the essential function analysis, it found the issue to be a factual one that should be left to the jury to resolve.
- An employee is not entitled to his or her requested accommodation. As the Third Circuit noted, “an employer’s obligation is only to provide an accommodation that is reasonable in and of itself—not the accommodation that ‘is the most reasonable or the employee’s prefer[ence].’” (Emphasis in the original.) The Third Circuit found that the offer to extensively modify the classroom in the fourth semester was reasonable as a matter of law, even if it was not the accommodation desired by the professor.
The Third Circuit’s jurisdiction includes Delaware, New Jersey, and Pennsylvania.
Key Takeaways
This decision offers practical guidance for employers managing remote work accommodation requests:
- Essential function determinations may need to be resolved by a jury, at least in the Third Circuit. At the same time, employers may want to establish clear evidence as to how and why in-person attendance is an essential function of the job. Past practice may be relevant to this assessment.
- Employers may want to ensure they are conducting individualized assessments for every request, particularly employers that have promulgated policies stating that they will do so.
- An employee’s requested accommodation may not be the only option. Where there are several effective reasonable accommodations, the employer may choose which one to implement, even if it is not the employee’s preferred one or not the most effective choice.
Ogletree Deakins’ Leaves of Absence/Reasonable Accommodation Practice Group will continue to monitor developments and will post updates on the Delaware, Higher Education, Leaves of Absence, New Jersey, Pennsylvania, and Return to Work blogs as additional information becomes available.
Leslie A. Lajewski is a shareholder in Ogletree Deakins’ Morristown office.
Fiona W. Ong is a shareholder in Ogletree Deakins’ Baltimore office.
This article was co-authored by Leah J. Shepherd, who is a writer in Ogletree Deakins’ Washington, D.C., office.
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