Fifth Circuit precedent recognizes the “general consensus among courts” that regular, in-person work is an essential function of most jobs. Yet the continued viability of this premise has been in question, given the ability of thousands of employees to work remotely during the COVID-19 pandemic. This has in turn created hurdles for employers seeking to bring employees back into the physical workplace while facing a barrage of accommodation requests under the Americans with Disabilities Act (ADA) to work from home.
- The Fifth Circuit emphasizes the fact-specific nature of the reasonableness of an employee’s telework request.
- Evidence of similarly situated employees successfully working remotely created a genuine issue of material fact regarding the reasonableness of the plaintiff’s remote-work request.
- The Fifth Circuit’s recent decision does not resolve a circuit split regarding whether the ADA applies to an employee’s commute to and from work.
- Evidence that employees successfully work remotely during the COVID-19 pandemic may make it easier to fend off summary judgment in reasonable accommodation cases.
In the recent unpublished decision, Montague v. United States Postal Service, the Fifth Circuit reiterated this “general consensus” but found there to be a genuine issue of material fact as to whether the plaintiff’s request to work from home could be a reasonable accommodation under the ADA.
The plaintiff, Dionne Montague, worked as a communication programs specialist, a job the United States Postal Service (USPS) claimed required in-person attendance and travel within the Houston, Texas, area where Montague lived and worked. Montague suffered from peripheral neuropathy, a nerve condition that often flared up in the mornings and made it difficult for her to drive to work during that time. She requested an accommodation to work from home in the mornings but report to the office in the afternoon when she was able to drive. USPS denied the request, contending that travel and physical presence in the office for the entire workday were essential functions of her job, making her requested accommodation unreasonable. The U.S. District Court for the Southern District of Texas agreed with USPS and entered summary judgment in its favor.
The Fifth Circuit’s Decision
In reversing summary judgment, the Fifth Circuit emphasized the fact-specific nature of the reasonableness of an employee’s telework accommodation request. As the court explained:
It’s often said that 90% of life is showing up. But the right number no doubt varies from job to job. It may be reasonable to work part of the day at home for some jobs—but not for others. The correct answer turns on the nature of the job and the facts of the case.
Based upon the facts presented in Montague, the Fifth Circuit concluded that Montague raised genuine issues of material fact regarding whether both travel to and physical presence in the office during the entire workday were essential job duties.
First, the court cited to inconsistent evidence concerning whether travel was essential, particularly since Montague’s job description did not refer to driving or travel as a job duty. Montague testified that she only traveled for work minimally in the past, and her supervisor testified that her job “sometimes” required travel within the Houston area. In the court’s view, the evidence permitted a reasonable inference that Montague could have performed this travel during the afternoons.
The court similarly found there to be a genuine issue of material fact as to whether Montague’s job required her to be in the office all day. The court cited to evidence that USPS permitted similarly situated individuals (Montague’s coworker and a past incumbent) to telework on a part-time basis, or, in the case of the past incumbent, on a full-time basis.
Arguably, USPS could have taken the position that it was not required under the ADA to consider an accommodation request arising out of Montague’s inability to commute to work. There is a circuit split on this legal issue. But the Fifth Circuit expressly declined to consider it, concluding that USPS forfeited the argument. Thus, the legal issue of whether an employee’s commute to and from work is even subject to the ADA remains an open question in the Fifth Circuit.
The Fifth Circuit’s opinion in Montague v. United States Postal Service makes clear that evidence of other similarly situated employees’ (or even a plaintiff’s) successfully performing the essential functions of their jobs remotely at some point may be relevant to the interactive process and to assessing whether an employee’s remote-work request is reasonable. Such evidence is far more likely to exist now, following the emergence of COVID-19, than it did pre-pandemic, and the Montague opinion serves as a reminder that this sort of track record can be material to the analysis. This is seemingly consistent with recent U.S. Equal Employment Opportunity Commission guidance that “the period of providing telework because of the COVID-19 pandemic could serve as a trial period that showed whether or not this employee with a disability could satisfactorily perform all essential functions while working remotely.”
The Montague decision also highlights that employers may want to review job descriptions regularly to ensure their accuracy and completeness. Prior to the COVID-19 pandemic, employers may not have identified in-office attendance as essential because it was arguably implied. Post-pandemic, however, employers might consider evaluating whether in-person attendance is essential, and, if so, include this information in job descriptions.
Finally, because the reasonableness of a plaintiff’s remote-work request is a fact-specific inquiry, employers in the Fifth Circuit may face greater difficulty obtaining summary judgment on the issue. At the same time, the Fifth Circuit reiterated its prior precedent that any requested accommodation must still have a regular, in-person component. The precise number of days and hours required for in-person attendance may vary, depending on the job. Accordingly, accommodation requests to work full-time remotely or to work remotely on an “as needed basis,” resulting in irregular or unpredictable work schedules, would not appear to comport with this precedent.
Ogletree Deakins will continue to monitor developments and will provide updates on the Leaves of Absence blog as additional information becomes available.