Home » Employee Issues » In the Fifth Circuit, Attendance May be an Essential Function of Most Jobs and Telecommuting is Not Necessarily a Reasonable Accommodation

In the Fifth Circuit, Attendance May be an Essential Function of Most Jobs and Telecommuting is Not Necessarily a Reasonable Accommodation

With the advent of an increasingly interconnected economy and advancement in technology permitting employees to, in many cases, work seamlessly from home, employers are increasingly facing requests from allegedly disabled employees to permit long-term and/or permanent telecommuting as a reasonable accommodation for their alleged disabilities. Under the ADA, of course, employers must generally engage in an interactive or collaborative process with the employee claiming to be disabled to accommodate the known limitations of an employee’s disability, if possible; assuming the employee can perform the essential functions of the job.

But in light of existing technology, is open-ended telecommuting a reasonable accommodation?

Probably not, at least in the Fifth Circuit.

In Credeur v. State of Louisiana, the Fifth Circuit recently concluded that in most cases employers are not obligated to permit telecommuting as a reasonable accommodation. And, importantly, the Court reaffirmed the proposition that it is, in the first instance, within employers’ sound discretion to identify the “essential functions” of their jobs, which may include attendance. Those “essential functions” are critical to the analysis because to be “qualified” under the ADA, the employee must be able to perform the essential functions of the job with or without reasonable accommodation.

The Court’s determination arose in the context of a lawsuit brought by a litigation attorney in the State of Louisiana’s Office of the Attorney General who sued when her request for indefinite telecommuting was rejected. She argued that working in the office was not an essential function of the job and, following complications from a kidney transplant, working from home was necessary. The Fifth Circuit, however, noted that “regular work-site attendance is an essential function of most jobs” and particularly where the job is interactive and involves a significant degree of collaboration or teamwork. Further, the Court noted that it must give the greatest weight to the employer’s judgment as to the job’s essential functions. The employee’s subjective judgment does not create a genuine dispute of material fact sufficient to withstand the employer’s motion for summary judgment.

That is, it is not enough for the employee to merely proffer her opinion that it isn’t necessary to be in the office or that a particular employer requirement is unnecessary. Instead, the Court does not allow employees to define their jobs’ essential functions based solely on their own personal opinions, viewpoints, and experience.

“Construing the ADA to require employers to offer the option of unlimited telecommuting to a disabled employee would have a chilling effect. Rather than offer such benefits, companies would tighten their telecommuting policies to avoid liability. The ADA does not require an employer to ‘reallocate essential functions’ to accommodate an employee with a disability.”

Notwithstanding the favorable Fifth Circuit assessment of the issue, employers should approach such situations cautiously. In all likelihood, a court’s assessment will be a case-by-case determination predicated upon the specific job at issue, the tasks involved, and prior analysis of the issue by the employer. To that end, employers would be well advised to revisit their job descriptions and their policies with respect to telecommuting employees.

Credeur v. State of Louisiana, No. 16-30658 (5th Cir., June 23, 2017)

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