Last month, we reported a First Circuit Court of Appeals decision that rejected an Americans with Disabilities Act claim brought by a teacher who was denied an extended leave of absence for recovery from surgery. The court found that the teacher was not a qualified person under the ADA because she was not able to perform the essential functions of the job, including in-person instruction. Earlier this week, the Seventh Circuit Court of Appeals reached a similar decision in a case brought by a teacher at a Department of Defense school who requested a delayed start to her work day.

In Smithson v. Austin, the plaintiff suffered from multiple medical conditions that regularly interfered with her ability to conduct classroom instruction. Her doctor requested accommodations that would allow her to report to work as much as two hours late during school days. She sued under the Rehabilitation Act (which is interpreted similarly to the ADA) after the school principal declined to agree to a permanent job modification and required that she use sick leave for her absences.

The Seventh Circuit court affirmed dismissal of the lawsuit on the grounds that the plaintiff could not regularly teach in-person, which was an essential function of the job. The court refused to “punish the employer” for attempting to work with the plaintiff, rejecting her claims that these earlier efforts demonstrated that her absences were not compelling evidence of her inability to perform the job. The Seventh Circuit also refused to consider remote teaching measures adopted during the COVID-19 pandemic as proof that in-person teaching was no longer an essential function of the position.

These two decisions strengthen schools’ legal position requiring teachers to regularly conduct in-person instruction. While schools, as with all employers must consider accommodations for occasional teacher absences, requests that limit regular attendance most likely will not be considered a required accommodation under federal disability discrimination laws.

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