Telework and Modified Schedules Are Not Reasonable Accommodations If the Employee Cannot Perform Their Essential Functions

In the context of the increase in telework during the pandemic and burgeoning requests from employees to continue telework as a reasonable accommodation, the U.S. Court of Appeals for the Tenth Circuit issued a case confirming the point that an accommodation, including telework or a modified schedule, is not reasonable if the employee is unable to perform the essential functions of their job.

In Brown v. Austin, an employee sought accommodations of increased telework (two days a week instead of just one) and weekend work, among other things, for certain mental health disorders. These requests were denied and, following a series of other events, the employee brought a lawsuit asserting multiple claims, including failure to accommodate under the Rehabilitation Act. (The Rehabilitation Act prohibits disability discrimination against federal employees, and incorporates standards from the Americans with Disabilities Act.)

The Tenth Circuit rejected the employee’s claims. The employer established that the essential function of the employee’s position was fraud investigations, which required him to work with paper case files that were only available in the office and to collaborate with law enforcement partners.

With regard to the telework, the employee was required to be physically present in the office to work with the paper files (although the Tenth Circuit noted that if the files were digitized, there likely would have been a different analysis). While he, and others, were able to telework once a week (or every two weeks, for the others), the type and amount of work that could be performed remotely was very limited.

As for the weekend work, because the law enforcement partners were only available during the weekdays, the Tenth Circuit concluded that his proposal meant that he would not be able to provide timely support to those partners. Moreover, because no managers or supervisors worked weekends, they were unavailable to monitor his work.

Because both of these accommodations would have required the employer to eliminate an essential function of his job, the Tenth Circuit found them to be unreasonable. This case is a good reminder to employers that they do not have to excuse essential functions as an accommodation – but that it is important to ensure that the function truly cannot be performed. With the increase in teleworking technologies, what may not have been possible even a year or two ago may now be possible.