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Remote Work as an Accommodation in the Post-COVID Workplace

There was a time in the not too distant past when working from home was generally not a reasonable accommodation under the ADA. Mobley v. Allstate Ins. Co., 531 F.3d 539, 547-48 (7th Cir. 2008). In fact, the Seventh Circuit was quite emphatic in its position on this issue:

“[A]n employer is not required to accommodate a disability by allowing the worker with a disability to work, by himself, without supervision, at home . . . where their productivity inevitably would be greatly reduced. . . [I]t would take a very extraordinary case for the employee to be able to create a triable issue of the employer’s failure to allow the employee to work at home.”

 Vande Zande v. Wis. Dep’t of Admin., 44 F.3d 538, 545 (7th Cir. 1995). However, like so many other things, technology and COVID have changed all that.

The Mask Mandate

In Kinney v. St. Mary’s Health, Inc., No. 22-2740, (7th Cir. Aug. 7, 2023), the Seventh Circuit took the opportunity to revisit its position on work from home as an accommodation under the ADA. It did so in the context of a “mask dispute” during the COVID crisis. Kinney worked as director of imaging services at St. Vincent Hospital in Evansville, Indiana. “Like many other employees across the world,” Kinney began working remotely in March 2020 due to the COVID pandemic. However, when employees at the hospital were later required to return to work subject to a mask mandate, Kinney refused. Instead, she presented a note from her doctor stating that her anxiety prevented her from wearing a mask and recommending that she work entirely from home. When the hospital insisted that she return, she isolated herself in her office, appeared for a meeting without a mask, and presented another doctor’s note that restricted her to in-person work two days a week and limited her mask wearing to a maximum of 15 minutes at a time. When the hospital denied her request, she took intermittent FMLA leave three days a week, exhausted all of her PTO, took a leave of absence and then resigned, filing an EEOC charge alleging that the hospital failed to accommodate her disability by refusing to allow her to work from home. The district court ultimately found in favor of the hospital and dismissed her case.

 Failure to Comply with Safety Protocol

 On appeal, the Seventh Circuit first addressed the question of whether Kinney’s refusal to comply with the mask mandate rendered her unqualified for the position. Noting that inability to comply with a valid safety requirement renders an individual unqualified for a position, the court found that use of a mask was necessary to protect the health and safety of employees and patients. As a result, because Kinney was not willing or able to work in-person while wearing the personal protective equipment the job required, she was not qualified for the position – unless she could perform it with reasonable accommodation, in this case, by working from home.

Work from Home

The court began its analysis by noting that the lower court and parties had framed the main issue as whether working in person was an essential function of Kinney’s job – as the above-cited precedent requires. Recognizing that advances in technology have made working from home more feasible and noting, “[t]he many lessons learned about working from home effectively during the pandemic have reinforced that point,” the court suggested that the more appropriate focus should be: whether essential functions of the job must be performed in person, such that allowing the employee to perform those functions from home would not be a reasonable accommodation. In such cases, the analysis must focus on the specific job and its essential functions and specific possible accommodations. However, the court also cautioned about reliance on COVID-related accommodations as “proof” that they are reasonable:

“The fact that many employees were able to work remotely temporarily when forced to do so by a global health crisis does not mean that those jobs do not have essential functions that require in-person work over the medium to long term. Determining whether a specific job has essential functions that require in-person work has become much more of a case-specific inquiry.”

Applied to Kinney’s remote work demand, the court found that the demands of her position, supported by the testimony of her staff, demonstrated that she could not effectively perform the essential functions of her job remotely.

What this Means

Prior to the pandemic, it was almost a given that a request to work from home as an accommodation was in most cases unreasonable. We did not need a court opinion to know that COVID changed that – but we now know, from this court opinion, that the law has also changed to reflect this evolution. So, instead of focusing generally on whether working in person is an essential job function, the focus should be more specific, targeting the essential demands of the job, whether they must be performed in person, and whether allowing the employee to perform them from home would be unreasonable.

If you have any questions about work from home, ADA accommodation and/or any other issues about remote work, feel free to contact attorney Alan Seneczko by email or at (262) 560-9696.

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