By Blake Bertagna

Law360 (April 14, 2020, 5:24 PM EDT )

Blake Bertagna

Before government authorities started issuing shelter-in-place orders and taking other protective measures last month in response to the COVID-19 pandemic, approximately 5 million employees (between 3% and 4% of the U.S. workforce) worked remotely.[1] In the last month, that figure has multiplied exponentially with many employers converting nearly their entire workforces to remote to comply with government restrictions and to protect their employees and customers from COVID-19.

In the last few days, however, the White House and governors across the U.S. have started planning efforts to gradually reopen the economy. As employers reopen business and resume operations, they will begin transitioning their workforces back to the workplace.

Employers typically view on-site attendance as essential to employee job success, and accordingly, consider employee absences from work to be a significant cost to business. The Centers for Disease Control and Prevention estimates that productivity losses from missed work cost employers $225.8 billion, or $1,685 per employee, each year.[2] For this reason, managers are often eager to enforce their attendance policies, and to discipline or terminate employees who fail to meet attendance standards. 

But employers often fail to understand — or completely overlook — the complex rules embedded in the Americans with Disabilities Act and its state-law counterparts, which prohibit employers from discriminating against individuals with disabilities and require them to provide reasonable accommodations to enable such individuals to perform the essential functions of their jobs.

Likewise, employees fail to appreciate the limits on their rights as individuals with disabilities under such laws, including that they can be disabled and yet be unprotected, and that some requests for accommodation need not be granted because they are unreasonable or unduly burdensome. 

In the coming months, as employers start to shift their employees and business back to a pre-COVID-19 world, employers' enforcement of their attendance policies and standards are going to be put to the test, and they should be preparing now to understand how they can avoid and mitigate legal risk.

Disability-Related Claims

The ADA and its state-law counterparts were enacted to prevent otherwise qualified individuals from being discriminated against in employment based on a disability.

These laws provide several key protections, including: (1) prohibiting discrimination against "a qualified individual with a disability" because of the disability, such as in the job application process, hiring, advancement, compensation, and termination of employment; (2) requiring the provision of reasonable accommodations to the known physical or mental limitations of the individual unless the accommodation would result in an undue hardship on the business; and (3) obligating employers to engage in an interactive process (or a meaningful dialogue) with the employee to find the best means of accommodating the disability.[3]

To prevail on any of these theories, a plaintiff has an initial burden to establish several threshold elements, including that the plaintiff is a qualified individual with a disability. Whether a person is a qualified individual and a disabled individual are distinct legal questions. A person can have a disability yet not be qualified.

To be qualified, an employee must possess the requisite skill, experience, education and other job-related requirements for the position. More importantly, the employee must be able to perform all of the position's essential functions with or without reasonable accommodation.

The term "essential functions" has been defined to mean the fundamental duties, as opposed to the marginal functions, associated with an employment position. It is an axiomatic principle of disability law that employees must be able to meet all of a job's essential functions despite having a disability.

A Common-Sense Conclusion

Courts have long embraced the notion that attendance is an essential function of virtually all jobs. In its 2000 opinion in Jovanovic v. In-Sink-Erator Division of Emerson Electric Co., the U.S. Court of Appeals for the Seventh Circuit observed: "[C]ommon sense dictates that regular attendance is usually an essential function in most every employment setting; if one is not present, he is usually unable to perform his job."[4] 

Accordingly, courts have cited a host of reasons supporting attendance as a job requirement. The U.S. Court of Appeals for the Ninth Circuit has referred to "the trinity of requirements that make regular on-site presence necessary for regular performance." The requirements include: (1) working in an interactive environment and as a member of a team (e.g., neo-natal nurse, resale buyer); (2) interacting face-to-face with customers or colleagues (e.g., teacher, airline customer service agent); and (3) working with equipment or materials that are on site (e.g., dockworker, mechanic, telephone service representative).[5] 

Applying one or more of these characteristics has led courts to find that most jobs feature attendance as an essential function. As the U.S. Court of Appeals for the First Circuit commented in Rios-Jimenez v. Secretary of Veterans Affairs in 2008: "At the risk of stating the obvious, attendance is an essential function of any job."[6]

Evidentiary Indicia of Essential Functions

Courts have looked to several types of evidence in evaluating whether attendance is an essential function, including:

• The employer's judgment: Courts have given substantial weight to this element. Is there manager testimony supporting the business justification for requiring attendance? For example, testimony that attendance is an essential function for a call center customer service representative, because when the representative is absent any calls that would have otherwise gone to the employee are rerouted to another representative, resulting in potential increases in customer wait times, decreases in the quality and speed of customer service, increased workplace tensions, and decreased morale among the other representatives.
  
  
• Written job descriptions: Does the written job description list attendance as an essential function or job requirement?
  
  
• Employee evaluations: Have employee reviews rated the employee based upon their attendance or otherwise commented on absences? Employers must thoughtfully balance, however, the risks associated with commenting on employee absences or health to defend against an employee citing such language as evidence of discrimination or retaliation related to a disability or protected medical leave of absence, and carefully draft such language.
  
  
• Written policies: Does the employer have a time and attendance policy, leave policy or sick policy that requires strict adherence to attendance requirements?
  
  
• Verbal representations: Did the employer make statements to the employee in the screening or onboarding process regarding the importance of adhering to a specific start and stop time or schedule?
  
  
• Comparators: Has the employer allowed nondisabled employees to have similar records of absenteeism without the same discipline or consequences?
  
  
• Enforcement of attendance policy: Did the employer discipline or reprimand the employee for attendance? 
  
  
• Relationship between attendance and disability: Are the absences related to the alleged disability, or some other personal reason, and did the pattern of absenteeism precede or follow the onset of the disability?
  
  
• Staffing: Does the relevant group/department in which the employee works have limited staffing such that the employee's presence is impactful on the business? 
  
  
• Skill set: Does the employee have a specialized skill set that makes it more difficult to find a replacement in the employee's absence?
  
  
• Performance impact: Have the absences of the employee resulted in mistakes in the employee's work product or resulted in other negative effects on productivity or morale?

In a decision issued last year by the U.S. Court of Appeals for the Eighth Circuit, for example, the plaintiff was a locomotive engineer with chronic back pain. He asked his employer, Union Pacific Railroad, to accommodate his back pain by allowing him to take time off as necessary, and receive 24 hours of rest per shift (between shifts).[7]

In holding that job attendance was an essential function, the Eighth Circuit relied upon the facts that the job description listed attendance as an essential function, the company's policy required that employees be "available to work [their] assignment ... whenever it is scheduled to work," and the employer gave him repeated warnings about his poor attendance.

In contrast, some courts have been less inclined to grant relief to employers — at least at the summary judgment stage — when there was evidence that:

• The employer failed to adopt measures designed to generally accommodate employees with disabilities or to specifically respond to/follow up on the plaintiff's specific request for an accommodation.
  
  
• The employer has allowed other employees in the same position to have similar absences or schedule flexibility who were treated more favorably.
  
  
• The employer did not have an attendance-related policy, or alternatively, its policy included discretionary rather than mandatory language related to attendance.
  
  
• The employer did not enforce its attendance policy (e.g., never disciplined employees for attendance).
  
  
• The plaintiff's proposed accommodation may have been reasonable (e.g., transferring to part-time for a period of time).
  
  
• The plaintiff's absenteeism was not chronic or excessive.
  
  
• The plaintiff improperly received points for absences under a no-fault attendance policy.
   
• Managers had not previously documented coaching or criticizing the plaintiff for attendance.
  
  
• Co-workers in the same position believed that absences did not impede job performance. 

Reasonable Accommodations

Even if attendance is established as an essential function of the position, the plaintiff can still prevail by establishing that he or she could perform all essential functions of the job with a reasonable accommodation. In general, plaintiffs have not experienced tremendous success in identifying an effective reasonable accommodation for the failure to be present at work.

A key inquiry in evaluating whether a reasonable accommodation is available is whether the employee's ability to perform the position's essential function — such as attendance — will improve with the granting of the reasonable accommodation.

Accordingly, where employers have already granted the plaintiff reasonable accommodations to help with attendance, such as a modified work schedule, but their attendance deficiencies persist, courts have concluded that there is no reasonable accommodation. The law does not contemplate requiring employers to indefinitely offer disabled employees an unsuccessful accommodation in the face of a worsening condition.

It is a foundational legal tenet that a reasonable accommodation is one that enables a disabled employee to perform the essential functions of a job. A corollary is that an accommodation that would eliminate an essential job function, such as attendance, is not reasonable. Accordingly, in Amadio v. Ford Motor Co. in 2001, the Seventh Circuit observed, "[w]hen an employee is unable to perform the essential function of attending [her] employment, few, if any, reasonable accommodations exist."

Nonetheless, there are three accommodations that disabled employees regularly raise in connection with absenteeism: (1) a flexible schedule, (2) additional leave, and (3) the ability to work from home. 

Flexible Schedule

When employees contend that their disability inhibits their ability to be at work and their employer should give them flexibility in when they show up (and even in the amount of notice provided, if any), courts have frowned on this proposal, viewing it as an unreasonable request for an open-ended work schedule or unlimited absentee policy that will fail to remedy the ultimate problem of unsatisfactory attendance.

In U.S. Equal Employment Opportunity Commission v. Ford Motor Co. in 2015, the U.S. Court of Appeals for the Sixth Circuit observed that the ADA does "not endow all disabled persons with a job — or job schedule — of their choosing." This type of request for a flexible schedule fails to:

address the heart of the problem: the unpredictable nature of [the plaintiff's] absences. Requiring the [employer] to accommodate such absence would place upon the agency the burden of making last-minute provisions for [the plaintiff's] work to be done by someone else. Such a requirement would place an undue hardship on the [employer].[8]

In other words, permitting an employee to arrive at work at any time only when he or she feels like working, without reprimand, would in essence require the employer to change the essential functions of the employee job, and thus is not a request for a reasonable accommodation, and moreover, would impose an undue burden on the employer (e.g., requiring the employer to, at the last minute, reassign the work to other employees and inhibit their ability to complete their work).

In short, as the Seventh Circuit noted in EEOC v. Yellow Freight System Inc. in 2001, employers are "not obligated to tolerate erratic, unreliable attendance or to provide an accommodation which would impose an undue hardship on the business."[9]

More Time Off

Where circumstances warrant, courts regularly hold that some reasonable period of leave should be given to employees as a reasonable accommodation — separate from or in addition to the time to which they may be entitled under the Family and Medical Leave Act and its state law counterparts. Employees often ask for even more time off or more sick days, however, to cover their continued excessive absences. 

Courts have found such requests to be unreasonable when the employees have already received significant amounts of leave and there is no clear prospect for recovery. It is a well-established principle in disability law that an employer is not required to keep an employee's job open indefinitely.

Thus, absent information showing that the employee's course of treatment during a leave has resulted in improvement or that the employee's return is imminent, an employer is not required to provide additional leave as a reasonable accommodation. An accommodation is unreasonable if it would only allow an employee to return to work at some uncertain point in the future.

For example, in a 2012 Ninth Circuit case, Samper v. Providence St. Vincent Medical Center, a hospital employee who suffered from fibromyalgia exceeded her employer's limits for unplanned absences. After her employer offered various alternative unsuccessful accommodations, such as moving shifts and a part-time work schedule, the employee sought an accommodation of additional ongoing intermittent leave.

The employer denied the request and terminated the employee. The court held that the employee's requested accommodation was unreasonable as a matter of law, observing that despite the employer's patience and accommodations, "there was literally nothing in the record to suggest that the future would look different from the past."[10]

Teleworking

One of the most common requests that employees raise in today's work environment is to work from home. Telecommuting has historically been viewed as a reasonable accommodation but only in appropriate circumstances.

Even before the rise of all the technology in today's workplace that has facilitated remote communication, courts acknowledged that "[w]orking at home is a reasonable accommodation when the essential functions of the position can be performed at home and a work-at-home arrangement would not cause undue hardship for the employer."[11]

The same analysis that has long applied to all forms of reasonable accommodation applies to teleworking as an accommodation: (1) the employee must be able to perform all of the essential functions from home, and (2) even if the employee can perform all the essential functions from home, the request must not cause an undue burden on the employer.

The EEOC has issued informal guidance addressing telework as a reasonable accommodation. It encourages employers to consider several factors in determining the feasibility of working at home, including:

• The employer's ability to supervise the employee adequately;
  
  
• Whether any duties require use of certain equipment or tools that cannot be replicated at home;
  
  
• Whether there is a need for face-to-face interaction and coordination of work with other employees;
  
  
• Whether in-person interaction with outside colleagues, clients or customers is necessary; and
  
  
• Whether the position in question requires the employee to have immediate access to documents or other information located only in the workplace. 

The EEOC cautions that "[a]n employer should not ... deny a request to work at home as a reasonable accommodation solely because a job involves some contact and coordination with other employees" and notes that "[f]requently, meetings can be conducted effectively by telephone and information can be exchanged quickly through e-mail."[12]

Twenty-five years ago, in Vande Zande v. Wisconsin Department of Administration, the Seventh Circuit made the following observation: 

Most jobs in organizations public or private involve team work under supervision rather than solitary unsupervised work, and team work under supervision generally cannot be performed at home without a substantial reduction in the quality of the employee's performance. This will no doubt change as communications technology advances, but is the situation today. Generally, therefore, an employer is not required to accommodate a disability by allowing the disabled worker to work, by himself, without supervision, at home. ... An employer is not required to allow disabled workers to work at home, where their productivity inevitably would be greatly reduced. No doubt to this as to any generalization about so complex and varied an activity as employment there are exceptions, but it 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.[13]

The Seventh Circuit made this statement in January 1995. In October 1995, a Pew Research Center study reported that 14% of U.S. adults were online (using dial-up modem connections), only 3% of online users had ever signed on to the World Wide Web, 42% of U.S. adults had never heard of the internet, and an additional 21% knew it had something to do with computers.[14]

In short, it was a different time and remote work was a feasible proposition for very few jobs. The Seventh Circuit has recognized the same, revisiting just last year its 1995 observation. In Bilinsky v. American Airlines Inc., the court stated that

Technological development and the expansion of telecommuting in the twenty-four years since Vande Zande likely mean that such an accommodation is not quite as extraordinary as it was then. That inquiry is context-specific; a work-from-home arrangement might be reasonable for a software engineer but not for a construction worker.[15]

Despite the obvious technological advances, even today, many jobs cannot be fully performed from home. Accordingly, courts have continued to grant employers relief in holding that attendance is an essential function for traditional roles that have never been amenable to being performed remotely, such as police officers, nurses, and mail carriers, among others. 

But for positions that involve work that is primarily done on a virtual basis, via Skype, email or collaborative software, some courts have expressed skepticism regarding whether such jobs are dependent on where the employee works. Thus, employers should evaluate all of their positions, even those that in the past they have treated as being performed only in the office. As the Seventh Circuit advised, "[l]itigants (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."[16] 

Importantly, when employers receive a request to work from home, they should understand and take into account whether they have allowed other employees in the same position to work from home. Courts recognize that "[a]lthough an employer does not have to allow all employees to telecommute once it allows one person that option, such past practice is evidence that Defendant would not in fact suffer an undue burden."[17]

This principle may emerge with increasing frequency due to the recent, albeit temporary, shift to remote work for so many employees during the COVID-19 pandemic. As employers require their employees to return to the office, and as employees request to be reasonably accommodated in the form of telework because of a disability, employees may cite their recent success in working remotely as evidence that the accommodation is reasonable.

But the test ultimately is and will remain a fact-specific inquiry. For example, in Morris-Huse v. GEICO, the U.S. Court of Appeals for the Eleventh Circuit held in 2018 that the employer was not required to provide a telephone claims representative supervisor with an accommodation to work remotely because the job required her to interact with, coach and lead a team of associates on a daily basis, which included monitoring associate phone calls using software installed on GEICO office computers.[18]

On the other hand, in Ravel v. Hewlett-Packard Enter. Inc., the plaintiff was a sales administration manager, a position that involved managing teams of executive assistants located all over the U.S. and internationally, which she would do on a virtual basis from her home office with occasional trips to the company's office.[19]

The U.S. District Court for the Eastern District of California denied the employer's motion to dismiss, holding that the alleged accommodation to work from home appeared to be reasonable because the employee conducted her duties virtually on a regular basis. The burden ultimately falls on employers to cite evidence to demonstrate that an employee's job responsibilities could not be performed from home or that their business could not accommodate a work-from-home scenario. 

Conclusion

Employers are and will be confronting extraordinary risks and costs in many areas of their operation due to the impact of COVID-19. But they should not overlook the value of implementing robust policies addressing attendance and accommodations for employees with disabilities; hiring and training human resources and management personnel to understand the obligations arising from the ADA and state law; and exercising caution and patience in addressing attendance concerns for their employees with disabilities.

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Blake R. Bertagna is an associate at Paul Hastings LLP.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] Matthew Finnegan, "Remote working, now and forevermore?," Computerworld (April 13, 2020).

[2] Centers for Disease Control and Prevention, Worker Productivity Measures, available at https://www.cdc.gov/workplacehealthpromotion/model/evaluation/productivity.html (last accessed Feb. 21, 2020).

[3] 42 U.S.C. § 12112(a).

[4] Jovanovic v. In-Sink-Erator Div. of Emerson Elec. Co. , 201 F.3d 894, 899 (7th Cir. 2000).

[5] Samper v. Providence St. Vincent Med. Ctr. , 675 F.3d 1233, 1238 (9th Cir. 2012).

[6] Rios-Jimenez v. Principi , 520 F.3d 31, 42 (1st Cir. 2008).

[7] Higgins v. Union Pac. R.R. Co. , 931 F.3d 664, 666 (8th Cir. 2019).

[8] E.E.O.C. v. Ford Motor Co. , 782 F.3d 753, 757 (6th Cir. 2015).

[9] E.E.O.C. v. Yellow Freight Sys., Inc. , 253 F.3d 943, 950 (7th Cir. 2001).

[10] Samper, 675 F.3d at 1241.

[11] Humphrey v. Mem'l Hosps. Ass'n , 239 F.3d 1128, 1136 (9th Cir. 2001).

[12] Equal Employment Opportunity Commission, "Work At Home/Telework as a Reasonable Accommodation," available at https://www.eeoc.gov/facts/telework.html (last accessed Feb. 21, 2020).

[13] Vande Zande v. State of Wis. Dep't of Admin. , 44 F.3d 538, 544 (7th Cir. 1995).

[14] Gil Press, "A Very Short History Of The Internet And The Web," Forbes (Jan. 2, 2015).

[15] Bilinsky v. Am. Airlines, Inc. , 928 F.3d 565, 573 (7th Cir. 2019), as amended (Aug. 9, 2019).

[16] Id.

[17] Meachem v. Memphis Light, Gas & Water Div. , 119 F. Supp. 3d 807, 818 (W.D. Tenn. 2015).

[18] Morris-Huse v. GEICO , 748 F. App'x 264, 267 (11th Cir. 2018).

[19] Ravel v. Hewlett-Packard Enter., Inc. , 228 F. Supp. 3d 1086, 1100 (E.D. Cal. 2017).

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