Since the onset of the COVID-19 pandemic, remote work has spread throughout new industries and has provided numerous benefits to employers, including saving rent, utilities, and other costs required to maintain a physical work or office space, hiring more qualified candidates from a broader geographic region, and offering a remote work benefit to lure and retain top talent and skill.  Nonetheless, there are still many jobs that can only be performed in a physical workplace as demonstrated by a recent opinion of the United States Court of Appeals for the Fourth Circuit (covering North Carolina, South Carolina, Virginia, West Virginia, and Maryland).  In that case, entitled Crews-Sanchez v. Frito Lay, Inc. (available here), the Fourth Circuit affirmed a trial court’s dismissal of a former employee’s claims under the Americans with Disabilities Act (ADA), finding that her requested remote work accommodation was not reasonable because her presence in the workplace was required to perform the essential functions of her job.

The plaintiff worked as the Environmental Health & Safety Manager at the Frito-Lay facility in Lynchburg, Virginia.  In that role, she was responsible for OSHA, EPA, and regulatory compliance, including ensuring employees were following all of Frito-Lay’s safety rules and regulations, managing PPE and safety equipment, overseeing an emergency response team that responded to emergencies at the facility, identifying and evaluating hazards in the facility, and implementing effective controls or corrective solutions for workplace hazards.  Starting in March 2020, the plaintiff also began overseeing various COVID-19-related job duties in the facility, such as ensuring compliance with any CDC or other COVID-19 related health guidelines, distributing PPE to employees, setting up furniture that would comply with social distancing rules, creating portable handwashing, sanitizing, and mask stations, coordinating temperature scanning stations, and implementing posters and guidance so workers avoided close contact in the facility.

About three and a half months before the plaintiff’s termination for disclosing confidential health-related information about a coworker to a non-affiliated third-party, the plaintiff provided a medical note to Frito-Lay stating that she has an immunocompromising condition and should be allowed to work from home to maximize social distancing during the pandemic.  Frito-Lay did not respond to the plaintiff’s medical note, and after her termination, she sued Frito-Lay for, among other things, disability discrimination for failing to provide her a reasonable accommodation under the ADA.

In support of that claim, Plaintiff argued that remote work was reasonable because Frito-Lay routinely allowed other members of management in Lynchburg to work from home.  The trial court rejected this argument, explaining that, regardless of whether other managers in other positions could perform the essential functions of their jobs remotely, the plaintiff’s remote work request was “plainly not reasonable because, according to her own testimony, she would not have been able to accomplish numerous essential job duties and key responsibilities” that required her to be on-site.  The trial court further noted that even if remote work was “reasonable,” Frito-Lay was not required to offer it because the plaintiff was unable to perform many essential functions of her job from home.  The Fourth Circuit affirmed the trial court’s ruling, emphasizing that the plaintiff’s “own testimony established that, at the time of her request for remote work, her essential job duties required her presence onsite.”  The plaintiff further argued that failing to engage in the interactive process established a failure to accommodate claim, but the trial court held that even if Frito-Lay did not engage in an interactive process, the plaintiff still had the burden to demonstrate the existence of a reasonable accommodation that would allow her to perform the essential functions of the position.  Because the plaintiff only ever argued for remote work, which was not reasonable, Frito-Lay’s failure to engage in an interactive process did not give rise to a disability discrimination claim.

This opinion provides a good reminder for employers to review current job postings and descriptions for all on-site positions to ensure they include the essential functions that require the employee’s on-site presence to perform.  Having these written documents in place will allow Human Resources to better analyze whether a request to work remotely as an accommodation is “reasonable” and whether the employee can perform the essential functions of the position remotely.  Unlike Frito-Lay, employers should always engage in this informal, interactive discussion with employees who request accommodations and analyze whether alternative accommodations could be provided.