Monday, August 19, 2019

7th Circuit Cautions that ADA Telecommuting Accommodations Must Be Viewed in Light of New Technology

For a long time, it was pretty much black letter law that if an employee couldn’t physically report to work then the employee couldn’t perform the essential functions of their job. The 7th Circuit Court of Appeals recently acknowledged that while an employer’s determination that in-person attendance at work weighs heavily in analyzing whether telecommuting is a reasonable accommodation under the ADA, technology, and the ability to work from a variety of locations, must be considered in that decision.

In the case of Blinsky v. American Airlines, the plaintiff was a long-time employee of the company, who developed MS. Her position allowed her to work from home as a reasonable accommodation, which the company acknowledged that she did successfully for several years. After a company merger, plaintiff’s workgroup, which had moved to Dallas, was “repurposed,” according to the company. The new focus of the department, now under a new supervisor, required more face to face collaboration and in-person backup. Plaintiff was informed that she could no longer telecommute and would be required to move to Dallas and report to work at the office. Plaintiff refused to move, claiming that her medical condition would be exacerbated by the hot climate in Dallas. The company sought other accommodations for her, including alternative positions. Failing to reach an agreement with the plaintiff, the company discharged her.

Plaintiff filed suit claiming, among other things that she was denied a reasonable accommodation under the ADA. The company argued that she was not a “qualified individual” under the Act. The issue boiled down to whether the plaintiff could perform the essential functions of her job remotely. Plaintiff argued that she had successfully performed her duties with a work from home accommodation for several years. The company argued that the department, and thus plaintiff’s duties, had undergone an informal change in focus which required more face to face collaboration.

The court affirmed summary judgment for the company, noting:
“[A]lthough we look to see if the employer actually requires all employees in a particular position to perform the allegedly essential functions, we do not otherwise second-guess the employer’s judgment in describing the essential requirements for the job…. [B]ut we’ve also cautioned that although the employer’s judgment is an important factor, ... it is not controlling….[T]he ADA does not give employers unfettered discretion to decide what is reasonable.”

The court then took a large step back from its previous position on telecommuting by stating:
“we offer a note of caution to future ADA litigants. We once said that "[a]n employer is not required to allow disabled workers to work at home, where their productivity inevitably would be greatly reduced"... Litigants (and courts) in ADA cases would do well to assess what’s reasonable under the statute under current technological capabilities, not what was possible years ago.

Employers should note that although many jobs cannot accommodate telecommuting; an employer cannot automatically dismiss telecommuting, or partial work at home arrangements, as an option for those jobs that might allow for it. Employers with concerns that telecommuting reduces productivity and accountability should consider developing a strong remote working policy which contains rules which will maintain accountability through reporting and other remote working requirements to ensure that workers outside of the office work as diligently as those at the office.