Earlier this month, a federal appellate court had to decide whether a hospital employee could perform her job remotely or whether the job’s essential functions required her to come to work in person.
Spoiler alert: The plaintiff lost the failure-to-accommodate claim she asserted under the Americans with Disabilities Act.
But stick around because the Seventh Circuit’s thoughtful analysis may help you decide whether regular work attendance is essential for the job.
The court began by acknowledging that “precedents have generally disfavored working from home because such an arrangement makes teamwork and supervision of productivity difficult,” in which the court “has focused less on particular facts to see whether a certain job required tasks that must be performed in person and more generally on why attending work in person is a basic requirement.” The result was often an easy win for the employer.
But that was then.
Even before COVID-19, courts began to appreciate that technology made working from home more feasible so that employers cannot rely on an automatic presumption working from home is unreasonable. The relative success of remote work during the pandemic reinforced that point.
However, working from home doesn’t necessarily negate in-person attendance as an essential job function. So, here are four considerations that the Seventh Circuit highlighted:
- Job description. First, have one. Second, it should contain information that would lead a reasonable person to believe that the essential functions must be performed at the office. In this case, the plaintiff was to serve as a “liaison” between various constituents at work. It also required oversight of sophisticated equipment found in the office.
- Get input from colleagues. The ADA does not require reassigning essential job functions. So, if, for example, colleagues complain that they are shouldering too much of a remote worker’s job duties, that indicates that coming to the office is essential.
- Ask supervisors. The plaintiff’s supervisor testified that her role required her to work in person. Self-serving statements don’t count for much. However, if the remote worker concedes that they rely on others in the office to help perform their job, the supervisor’s say-so means much more.
- Talk to subordinates, too. Do they feel that they are lacking guidance, supervision, or confidence? Or are they having trouble building relationships with a remote supervisor? All of this matters.
Ultimately, this is a fact-specific inquiry. Also, remember that the conversation doesn’t end at “in-person or bust.” Explore other accommodations that make the employee feel more comfortable coming to the office.