The U.S. District Court for the Eastern District of Virginia recently rejected a school principal’s argument that remote work was a reasonable accommodation for her asthma and restrictive lung disease that she claimed were exacerbated by the poor condition of the school building in which she worked. In Jordan v. School Board of the City of Norfolk, the court granted partial summary judgment in favor of the employer, finding that the principal’s physical presence in the school was an essential function of her job, and thus she could not perform the essential job duties of her position from her home.
Quick Hits
- The U.S. District Court for the Eastern District of Virginia rejected an elementary school principal’s request for remote work as an ADA accommodation, finding that on-site presence was an essential function of her job.
- Employers that allowed temporary modifications of jobs during the COVID-19 pandemic, including allowance of remote work, can require employees meet pre-pandemic essential job functions, including in-office presence.
- This decision reinforces the long-standing precedent that consideration should be given to an employer’s judgment as to what functions of a job are essential, including whether being physically present is essential.
Background
During the COVID-19 pandemic, the Norfolk Public Schools (NPS) provided students with remote learning and allowed elementary school principal Cheryl Jordan to primarily work from home.
In anticipation of an eventual return to in-person learning, Jordan submitted letters from three medical care providers advising that she suffered from restrictive lung disease and asthma, which were made worse by the poor condition of the school building. She requested an accommodation under the Americans with Disabilities Act (ADA) permitting her to continue working from home, even after students had returned to in-person learning. The school district denied her initial request for remote work on the basis that the essential functions of her job required physical presence in the building. Instead, as an alternate accommodation, NPS provided Jordan with an air purifier in her office to help improve the air quality.
When students returned to in-person learning, Jordan requested (and was approved for) leave under the Family and Medical Leave Act (FMLA). After exhausting her FMLA leave, Jordan made a second request for accommodation—but this time, she requested transfer to another building with “a healthy and safe environment.” After putting in the initial transfer request, she modified her request and sought transfer to a specific elementary school. Thereafter, she filed a charge of discrimination, claiming disability discrimination based on NPS’s failure to provide reasonable accommodation for her disability, particularly with regard to the school district’s denial of her request for remote work and transfer to another school. Shortly after she filed the charge, she was transferred to another elementary school, but not the specific school she had requested. A lawsuit ensued in which she asserted two claims of failure to provide reasonable accommodation under the ADA, and one claim of retaliation arising from her assignment to a school other than the one she had requested (which, she alleged, was in retaliation for having filed the charge).
The District Court’s Decision
The district court found that there were issues of material fact that precluded the entry of summary judgment on the retaliation and accommodation claims arising from Jordan’s transfer to a school other than the one she had requested. But the court held that no dispute of fact existed that prevented entry of summary judgment for NPS on Jordan’s failure-to-accommodate claim arising from her request for remote work.
The court focused on whether an elementary school principal’s essential job functions included being physically present in the school building on a daily basis. The court reviewed job descriptions, job postings, and vacancy announcements, and relied on deposition testimony from Jordan, who described her daily routine prior to the pandemic as including daily walks around the school building, greeting students and teachers, and observing classroom lessons.
Jordan, relying on job announcements for school principal positions that NPS had posted during the COVID-19 pandemic, argued that the absence of a specific requirement for physical presence or an explicit prohibition on remote work in the announcements showed that physical presence in the school building was not required.
The court rejected Jordan’s reliance on the job postings, noting that “[d]uring the COVID-19 pandemic, employers permitted telework and frequently excused performance of one or more essential functions.” “However,” the court wrote, “these temporary pandemic-related modifications ‘of certain essential functions does not [] mean that essential functions have somehow changed.’” (Citations omitted.) The court concluded that “once NPS required students and employees to return for in-person instruction, Jordan was required to resume her ‘job’s essential functions’ as they ‘were in the pre-COVID era.’” The court also pointed out that Jordan had the burden of identifying a reasonable accommodation that would allow her to perform the job, and, at the time she requested remote work as an accommodation, she did not provide NPS with any other accommodation options.
The court’s opinion upholds long-standing precedent that consideration should be given to the employer’s judgment as to what functions of a job are essential, “and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job.” Because Jordan was unable to demonstrate that she could perform the essential functions of her job remotely—in particular, the requirement of being physically present in the school building—she was not a qualified individual under the ADA, and judgment as a matter of law for the employer was proper.
Key Takeaways
What can employers take away from this decision? Here are a few post-pandemic considerations for employers that may face requests for remote work as an accommodation under the ADA:
- Some COVID-19–era policies and procedures may not support the needs of businesses as they resume the pre-pandemic definition of “normal.” Where appropriate, employers may want to consider updating policies to include expectations for in-office presence and ensure all other policies and procedures are modified to reflect the employer’s current practices and expectations.
- Written job descriptions provide objective evidence of what essential job functions are, including whether physical presence in the office is required. Employers may want to consider having written job descriptions for all jobs and outlining the job functions that are considered essential, including whether in-office presence is required.
Ogletree Deakins’ Leaves of Absence/Reasonable Accommodation Practice Group will continue to monitor developments and will provide updates on the blog as additional information becomes available.
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