Remote Work May Be a Reasonable Accommodation Where the Employee Has Been, Well, Working Remotely

In the context of the COVID-19 pandemic, many employees suddenly began working remotely – and as we move into a new normal, many employees would like to continue telecommuting. However, from a legal standpoint, employers need not agree to continued remote work unless it is required as a reasonable accommodation under the American with Disabilities Act or analogous state laws. But when can an employer argue that continued remote work is unreasonable? A recent case from the U.S. Court of Appeals for the Eighth Circuit provides some insight.

Facts of the Case. In Mobley v. St. Luke’s Health System, Inc., the employee managed a team of approximately 20 customer service employees, most of whom telecommuted full time. Managers, like the employee, were permitted to telecommute two days a week, with additional days permitted on a case-by-case basis. The employee had progressive multiple sclerosis, and requested several times for advance permission to telecommute on those days when his MS flared up. His requests were denied, ostensibly because he needed to supervise (poor-performing) direct reports in the office and because his flare-ups were unpredictable. He was told he could ask his supervisor on a case-by-case basis when he had a flare-up, and could use paid time off and FMLA if his request was denied. He sued for, among other things, failure to accommodate under the ADA and state law.

The Court’s Ruling. The Eighth Circuit found that the employee could possibly show that “he was able to perform the essential functions of his job through his proposed accommodation of teleworking while he experienced a flare-up of his condition.” Moreover, “by allowing [the employee] to consistently work remotely aside from his medical condition, [the employer] implicitly demonstrated a belief that he could perform his essential job functions without being in the office all the time.” The Eighth Circuit further observed that the employee consistently received positive performance reviews, which reflected his ability to remotely supervise his employees, contrary to the employer’s argument regarding the need for in-person supervision. As the Eighth Circuit noted, “nothing in the record indicates that had [the employee] been permitted to telework for an additional unquantified number of days during flare-ups, his job performance would have been inadequate.”

Lessons for Employers. The virtual workplace has undergone a radical transformation over the past two years. People have had to become familiar with new technologies that have greatly facilitated remote work capabilities in ways that were unimaginable prior to the pandemic. While clearly a great number of jobs still require an onsite presence, many white-collar positions – even management positions – may now be effectively performed remotely. But many employees who were forced to work from home during the pandemic were not, in fact, performing all of the essential functions of the job – and this is a critical point to explore when faced with an accommodations request for telecommuting. If an employer wishes to assert that in-person presence is a mandatory requirement of the job, it is important that the employer first review the position in light of the available new and evolving technologies – and if the employee has already been performing the position either partly or fully remotely, the employer must objectively assess whether the employee has, in fact, been performing all of the essential functions of the job and whether that performance has been adequate.