Work at Home Gets Skeptical Eye From Courts as Disability Issue

From Labor & Employment on Bloomberg Law

February 21, 2019

By Robert Iafolla

A nearly fatal bout with flesh-eating bacteria knocked Gary Brunckhorst out of his job with the city of Oak Park Heights, Minnesota, for almost a year and left him him with painful leg and foot injuries that limit his mobility.

When he was cleared to return to work, Brunckhorst asked the city to let him ease his way back. He requested a part-time schedule during his first four months back and wanted to work from home during that entire time. But Oak Park Heights said no. After Brunckhorst balked, the city eventually fired him.

A federal appeals court in St. Louis earlier this month blessed the city’s decision to deny the telework request. Brunckhorst showed that working from home would have been easier, but an employee’s preference isn’t a required accommodation under federal and state disability law, the U.S. Court of Appeals for the Eighth Circuit ruled.

Technology has made working remotely easier. It helps employers keep talent in a competitive labor market. At least 70 percent of employers offer work at home options, and some even require it. But as the Eighth Circuit decision showed, courts continue to be reluctant at best to make it a legal right.

Employers won 70 percent of the rulings over the past two years on whether they could reject workers’ bids for telework as an accommodation for a disability, according to a Bloomberg Law analysis of cases. The analysis examined 30 decisions on the merits of remote work. The Americans with Disabilities Act, which outlaws employer bias based on disabilities, and the Rehabilitation Act, which imposes similar prohibitions on federal agencies and contractors, require employers to provide reasonable accommodations to disabled workers.

When employers won, judges threw out the lawsuits. In worker victories, judges either said a jury could decide that telework was reasonable—allowing for more litigation—or that a previous pro-employee jury verdict could stand.

“The scale is stacked on the side of the employer,” Ruth Colker, disability law professor at Ohio State University, told Bloomberg Law.

The Rise of Telework

Teleworking in the United States, which was first popularized in California during the 1990s, comes in two main varieties, said Sumita Raghuram, a professor of labor and employment relations at Pennsylvania State University. Some companies require it, primarily to cut costs, while others offer it as a benefit to promote employee retention, Raghuram told Bloomberg Law.

Seventy percent of employers offer teleworking on some basis, and almost a quarter allow it full-time, according to a 2018 survey conducted by the Society for Human Resource Management. The human resource management association WorldatWork found an even higher prevalence in its 2018 survey, with 78 percent of respondents allowing telework on an ad hoc basis and 57 percent full-time.

“Teleworking continues to be popular and it’s only trending in an upward direction,” WorldatWork CEO Scott Cawood told Bloomberg Law.

Courts, however, have long been skeptical that remote work can be defined as a reasonable accommodation for a disability, based on the assumption that physical attendance on the job is necessary, attorneys and legal scholars told Bloomberg Law.

While judges have grown more open to examining whether physical presence is necessary in particular situations, plaintiffs challenging the denial of telework accommodations in court still face rough sledding, they said. Judges frequently throw out telework disability lawsuits on summary judgment motions.

“Courts used to say: ‘It’s not reasonable, the end,’” said Carolyn Wheeler, a former assistant general counsel for the Equal Employment Opportunity Commission. “Now courts are more likely to say: ‘It could be reasonable, but not in this case.’”

Judges’ views on remote work are influenced by their own experience, Wheeler and former EEOC general counsel David Lopez told Bloomberg Law. Many older judges may be leery, but with the appointment of younger judges with more experience with teleworking, the courts may be more willing to side with disabled workers, they said.

EEOC v. Ford

The EEOC has argued for 20 years that working from home can be a reasonable accommodation under the ADA. The agency appeared to win a landmark pro-teleworking decision in a case involving Ford Motor Co., but that victory proved to be fleeting.

A three-judge Sixth Circuit panel in 2014 revived the EEOC’s lawsuit alleging Ford violated the ADA by refusing to let a resale steel buyer work remotely as an accommodation for her irritable bowel syndrome. Technological advances mean that “attendance at the workplace can no longer be assumed to mean attendance at the employer’s physical location,” the panel said, calling the reasonableness of telework a “highly fact specific question.”

The full Sixth Circuit, however, overturned the panel a year later, saying the “general rule” that “attending work on-site is essential to most jobs, especially the interactive ones” is consistent with the ADA.

Nevertheless, a Sixth Circuit panel last year upheld a jury verdict in favor of a Memphis Light, Gas & Water lawyer who was denied remote working privileges after a doctor placed her on modified bed rest because of complications with her pregnancy. The plaintiff wanted to work from home for a limited time period, whereas the worker in the Ford case sought indefinite telework.

It’s About the Job, Not the Disability

Employers defending failure-to-accommodate claims rarely argue that the worker isn’t disabled. Instead, the issue is whether an accommodation is reasonable and effective unless it would amount to an undue hardship, said Robert Dinerstein, law professor and director of the Disability Rights Law Clinic at American University.

The strongest case for workers winning a summary judgment ruling in ADA telework lawsuits—thus not needing more litigationwould be when the employer permitted remote work for another employee with the same or similar job description, making it unreasonable as a matter of law to deny the request, Dinerstein told Bloomberg Law.

Courts are particularly hostile to accommodation requests seeking remote work indefinitely or for the entire work week, as opposed to those that ask for it on a limited or partial basis, lawyers and legal scholars said.

Is Being ‘At Work’ Literal?

Physical presence was a pivotal issue in Gary Brunckhorst’s case.

The city contended that municipal staffers often had to cover for each other, and that his position as billing clerk required handling confidential data and interaction with the public at city hall. Brunckhorst also needed on-the-job supervision, Oak Park Heights said.

The Eighth Circuit said he failed to show he could perform the essential functions of his job while teleworking. Some duties couldn’t be done, while others would have required another city worker to physically bring payroll materials to his house.

“Working remotely was thus not a reasonable accommodation for Brunckhorst’s disability,” the court said.

Oak Park Heights didn’t specify in the job description that the job Brunckhorst would fill after recovering from the flesh-eating bacteria couldn’t be done remotely. But employers who want the leeway to deny telework accommodation requests for particular positions should include physical attendance in their job descriptions, according to David Fram, who directs ADA and equal opportunity services at the National Employment Law Institute.

Companies should also develop arguments for why those jobs require physical presence, Fram told Bloomberg Law.

“Courts give a certain amount of deference to an employer’s job description,” Peter Petesch, an attorney with the management-side firm Littler Mendelson, told Bloomberg Law. “But because ‘I say so’ isn’t going to be enough, there needs to be more of an explanation.”


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