Lawyer’s Request to Continue Telecommuting Wasn’t Reasonable

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By Patrick Dorrian

A lawyer in the Louisiana state attorney general’s office wasn’t entitled to continue working from home as an accommodation for complications from kidney transplant surgery, a federal appeals court ruled ( Credeur v. Louisiana , 2017 BL 217392, 5th Cir., No. 16-30658, 6/23/17 ).

The decision reaffirms the view of many courts that “regular work-site attendance” is an essential requirement of most jobs, especially those that involve teamwork or in which the worker is required to interact with colleagues or clients. But that take is at odds with the language and purpose of the Americans with Disabilities Act, and the U.S. Supreme Court ultimately may be forced to weigh in, a plaintiffs’ attorney told Bloomberg BNA.

Interpreting federal disability rights law to require employers to provide unlimited telework as a job accommodation would have a “chilling effect” and could prompt companies to tighten their policies on telecommuting, Judge James E. Graves Jr. of the U.S. Court of Appeals for the Fifth Circuit said in his June 23 decision.

The ADA doesn’t require employers to eliminate or reallocate essential job functions to accommodate a disabled worker, and employers may generally require at least some physical presence by the worker at a job site, he said. That’s the “general consensus among courts,” he wrote.

This may be the first time the Fifth Circuit, which includes Louisiana, Mississippi, and Texas, has held in a published opinion that long-term work-from-home arrangements generally aren’t reasonable accommodations under the ADA, attorney Jill Kraft of Baton Rouge, La., said June 26. She represents plaintiff Renee Credeur, who no longer works for the attorney general’s office, in the case.

Issue Ripe for High Court Review?

Kraft said the Fifth Circuit followed a number of other courts in reaching that conclusion but that she disagrees with the holding because “the purpose of the ADA is to ensure that all folks have an opportunity to work, especially the disabled.” And the aim of the law’s accommodation provisions “is to help people with disabilities remain employed,” she said.

Failing to fulfill those purposes typically has consequences for a worker beyond just losing a job, she added. Rather, it can “touch every aspect of their lives,” Kraft said, noting that Credeur lost her health-care coverage, which she needs to treat her illness.

Kraft believes the emerging view embraced by the Fifth Circuit may be cued up for Supreme Court review. There’s tension between the language of the ADA and how courts are interpreting it when it comes to work-from-home accommodations, she said. It’s a “classic example” of the type of overly narrow construction of the law that Congress instructed courts to avoid when it amended the ADA in 2008, she said.

“I haven’t consulted with my client yet” to see if she wishes to pursue a further appeal or review of her case, Kraft said.

The state didn’t respond June 26 to Bloomberg BNA’s request for comment.

Employer’s Judgment Gets ‘Greatest Weight’

In affirming a lower court’s dismissal of Credeur’s failure-to-accommodate claims under the ADA and Louisiana law, the Fifth Circuit found that she failed to counter the state’s view that regular office attendance was an essential function of her position as a litigation attorney with the Louisiana Department of Justice.

Under the ADA’s plain language—and Equal Employment Opportunity Commission regulations interpreting the law—an employer’s judgment of what’s “essential” to a particular job is given “greatest weight,” Graves said. An employee’s unsupported testimony to the contrary alone doesn’t raise a need for a trial, he said.

But workers can be “good sources of information” of what is essential to a job and an employer’s view shouldn’t be given “blind deference,” the court added.

However, a disabled worker’s “unilaterally” declaring that she’s able to work from home without any impact on or consequence to the employer isn’t the sort of evidence that the ADA or EEOC regulations require courts to accept, the Fifth Circuit said.

Harassment, Retaliation Claims Also Failed

Credeur also failed to show disability harassment or retaliation, the court ruled.

Her inability to renew the temporary telecommuting arrangement she made with the state when she first returned to her job and other difficulties she encountered in trying to manage her illness in the workplace aren’t the type of employer actions that support harassment or retaliation claims under federal law, the court found.

Judges Thomas M. Reavley and Jennifer Walker Elrod joined the opinion.

Randal J. Robert and Richard F. Zimmerman of Kantrow, Spaht, Weaver & Blitzer APLC represented Louisiana.

To contact the reporter on this story: Patrick Dorrian in Washington at pdorrian@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Chris Opfer at copfer@bna.com

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