Let’s start with a basic rule in employment cases filed under the ADA: To be a “qualified individual with a disability,” an applicant or employee must be able to perform the essential job functions of the position that is held or being sought.
Is physical presence at the job site an essential function? Sometimes, the answer is obvious. A brain surgeon would have a hard time performing the job remotely, as would a plumber.
At other times, it is fairly obvious that a particular job can be performed remotely. Telesales and some editorial positions come to mind.
The issue is more relevant than ever. If the pandemic has taught employers anything, it is that a great number of jobs can be performed away from the prototypical work site.
The basic question: Can the employee do the job effectively from a remote location, such as the employee’s home?
When you stray from the edges and consider jobs that are more toward the middle of the spectrum, that question does not always yield a neat and easy answer.
In the case below, a court decided that remote work was not required as a job accommodation.
Clinical Dietician Can’t Work Remotely, Court Says
Joan Unrein was a clinical dietician at the Colorado Plains Medical Center. She lived in a rural town that was about 60 miles from the hospital.
For many years, Unrein endured the 120-mile round trip daily commute with no problems. But things changed when she developed a visual impairment that distorts her vision and makes it hard for her to perceive motion or see without magnifying equipment.
It is no minor impairment: In fact, it rendered her legally blind and made her unable to drive herself to work.
Trouble Getting There
Getting to work became a big problem, as she could neither drive nor find a reliable source to get her to the hospital.
She relied on friends and families to make the hour-long drive with her, but those people were sometimes unavailable. At other times, they backed out at the last minute. In addition, winter weather sometimes complicated the situation. As a result, Unrein could not guarantee when she would be at the hospital.
Once she was at work, Unrein was able to do her job because the hospital provided her access to magnifying equipment.
Unrein wanted to keep working. She asked the hospital to provide her with a flexible schedule “to accommodate [her] transportation.”
An Effort Was Made
The hospital tried to work with her. It told her to communicate with her supervisor about required schedule changes. And it told her she needed to work at least 30 hours a week, and that the majority of those hours should be work on-site.
The hospital also told Unrein that a set schedule was needed to ensure that patient care was not compromised. And it reserved the right to revisit the issue at some point in the future, informing Unrein that it would consider what “appropriate action” to take in the event that the arrangement unduly burdened other employees, reduced the quality of patient care or created a safety risk.
For 15 months, the parties tried to make the new arrangement work. But Unrein proved unable to maintain a set, regular schedule and communicate it to her supervisor. In addition, the hospital received complaints about Unrein’s absences, and it believed her absences contributed to lower patient satisfaction scores.
Further, while she worked the flexible schedule, Unrein’s performance rating went from mid-competent to barely competent.
When the hospital ended the arrangement, Unrein asked the hospital to reinstate it. She also amended her request by asking for permission to telecommute on a full-time basis.
The hospital denied her request. It said that, at a minimum, the clinical dietician position required over four hours of in-person, face-to-face interactions per day.
Just before the denial of the request, Unrein’s physician placed her on full-time medical leave without a return-to-work date. The reason for the leave was not related to Unrein’s visual impairment.
Don’t Hold Your Breath
Four months into the leave, her doctor told the hospital that she would “be unable to return to work in any capacity until further notice.”
After Unrein was on leave for seven months, she still had not provided a return-to-work date. By that time, she had also been approved to receive long-term disability and Social Security benefits.
Enough Is Enough
At that time, the hospital decided it had had enough. It terminated her employment, explaining to her in a termination letter that predictable and regular attendance at the hospital was an essential job function.
The hospital encouraged Unrein to apply for other positions for which she might be qualified, but she did not do so.
Instead, she filed a lawsuit against the hospital. In the suit, she alleged disability discrimination in violation of the ADA and a parallel state law.
More specifically, she asserted that the hospital did not accommodate her disability, did not engage in the required interactive process of determining a reasonable accommodation, and retaliated against her for reporting discrimination.
A lower court entered judgment in favor of the hospital. Unrein appealed, but only as to her accommodation claim.
The appeals court explained that the lower court’s ultimate decision against Unrein rested on two key findings: first, that physical presence at the hospital on a set and predictable schedule was an essential job function of the clinical dietician position; and second, that Unrein was unable to perform that essential job function, either with or without reasonable accommodation.
As to essential functions, the appeals court quoted a regulation that defines that term to mean the fundamental job duties of the position. It also noted that it is the employer’s burden to show that a particular job function is essential.
Importantly, it also pointed out that, in general, courts are to defer to an employer’s judgment as to whether a job function is truly essential.
Unrein argued that the lower court found a full-time schedule was an essential job function, but the appeals court disagreed. Instead, the lower court ruled only that the job required a set and predictable schedule.
The appeals court decided that Unrein’s requested accommodation of a flexible schedule without a set schedule was unreasonable “both as a matter of law and common sense.”
Unrein essentially asked to be relieved from an essential function of her position, the appeals court said. But a request to be relieved from performing an essential job function is not even a plausible accommodation, it explained.
Unrelated to Work?
The appeals court also said that Unrein was seeking an accommodation for her “transportation barrier,” which it characterized as a problem she faced outside of work and a problem that was “unrelated” to any essential job function. Transportation to and from work was not an essential function of Unrein’s position, the court said.
The lower court’s ruling for the hospital was affirmed.
Unrein v. PHC-Fort Morgan, Inc., No. 20-1219, 2021 WL 1307873 (10th Cir. 4/8/21).