Fifth Circuit Finds Telecommuting Not Reasonable for Accommodation for Litigation Attorney

Parker Poe Adams & Bernstein LLP

Parker Poe Adams & Bernstein LLP

Contrary to the Equal Employment Opportunity Commission’s (EEOC) position discussed in last week’s EmployNews, federal courts continue to allow employers to require employees to actually come to work. Last month, the Fifth Circuit Court of Appeals upheld the decision of a state attorney general’s office to decline a permanent homework accommodation for an attorney litigating cases on behalf of the state. The court concluded that under the Americans with Disabilities Act (ADA), teamwork and collaboration are essential to successful case management.

In Credeur v. State of Louisiana, the plaintiff developed serious kidney problems requiring a transplant. Her employer allowed her to work from home for six months, but several years later, continuing complications led her to request a renewal of the telecommuting arrangement. After granting the request for five months, the attorney general concluded that the requested accommodation did not allow her to perform the essential functions of her job, because among other things, she could not attend hearings, conferences or depositions. The plaintiff attempted to return to working at the office, but subsequently resigned and filed suit under the ADA, alleging failure to provide reasonable accommodations.

In evaluating the claim, the Fifth Circuit deferred to the employer’s determination of the job’s essential functions. The employee’s own opinions about the position’s essential functions receive a significantly lower degree of consideration. Contrary to the administrative position adopted by the EEOC, the court agreed that regular worksite attendance was an essential function of the plaintiff’s job. Positions that require interaction with co-workers, teamwork and supervision of staff cannot be performed remotely. The fact that the employer was able to temporarily accommodate working from home does not mean that it is stuck with a permanent telecommuting arrangement.

As indicated last week, if the job requires regular attendance and interaction with co-workers, this should be detailed in the position’s written job description. If the employer concludes that the employee cannot remotely perform these functions, it must remember to determine if there are any vacant available positions meeting the employee’s qualifications that can be done from home.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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