Monday, August 7, 2023: Remote Work Not Required to Accommodate Hospital Worker’s Disability Claims Because Physical Presence was Essential Job Function
Exemption from On-Site Facial Covering Mandate Not a Reasonable Accommodation
A lower court correctly dismissed an Indiana hospital department head’s disability accommodation, discrimination, and related claims, the U.S. Seventh Circuit Court of Appeals (Chicago) ruled. The Court found that manager Anna Kinney could not perform certain essential functions of her job without being present in the radiology department she oversaw (Kinney v. St. Mary’s Health, Inc., No. 22-2740). Ms. Kinney requested she be allowed to work from home, claiming that she could not comply with the hospital’s COVID-19 safety protocol requiring her to wear face coverings which exacerbated her pre-existing anxiety disability.
Writing for a unanimous three-judge panel, Judge David F. Hamilton concluded that because physical presence was an “essential function” of her job, she was not “qualified” for her manager position under the Americans with Disabilities Act (“ADA”). Moreover, even if she had been “qualified,” the accommodation she requested – to be excused from the safety protocol and work without a face covering – was not reasonable. The fact that the hospital allowed her to work from home for several months during the pandemic did not sway the appellate court to rule otherwise.
Employee Worked Remotely for Six Months During Pandemic
As the Executive Director of the radiology department, Ms. Kinney supervised approximately 120 employees. For six months during the COVID-19 pandemic, she worked remotely, going to the hospital two or three times a month. When the hospital developed safety protocols in August 2020, her coworkers, including all department heads, returned to work in person at the hospital and wore facial masks/coverings as per the hospital’s requirements at the time. Nevertheless, she completely stopped going on-site and worked solely from home yet did not bother to tell her supervisor or ask permission.
Hospital Rejected Accommodation Requests & Employee Eventually Resigned
In October, following multiple complaints about her failure to appear on-site, her supervisor told Ms. Kinney that she needed to work in person at least a few times each week. A few days later she submitted a doctor’s note saying that she could not wear a mask due to her diagnosed anxiety disorder (which the hospital accommodated with intermittent Family and Medical Leave Act (“FMLA”) leave prior to the pandemic). Ms. Kinney’s “Doctor Note” recommended that she work entirely from home, if possible. Although the hospital suggested wearing a face shield instead of a mask, Ms. Kinney failed to respond as to whether that suggestion was feasible. The hospital then required Ms. Kinney to return to work in person effective December 27, 2020.
In January 2021, Ms. Kinney submitted a second doctor’s note requesting an alternative accommodation of allowing for in-person work two days a week for six hours each day while performing as many of her responsibilities as possible in her office using remote technology so that mask-wearing could be kept to a minimum. Even then, Ms. Kinney’s doctor recommended that the hospital not require her to wear a mask for more than 15 minutes at a time. However, the hospital denied this request. The next week, Ms. Kinney attended an in-person staff meeting without a mask, leading to a reprimand. From that point, she worked in person two days a week, spending most of her time in her office with her door closed and without a mask. She took intermittent FMLA leave and used accrued paid time off to cover the remaining three workdays each week. When Ms. Kinney’s paid time off ran out, she took a leave of absence before finally resigning in August 2021.
Looking at Specific Job Functions, Appellate Court Found Physical Presence Essential
The Seventh Circuit panel ruled that Ms. Kinney’s requested accommodation of working remotely was not feasible because uncontested testimony from her managers, coworkers, and subordinates showed that she could not perform the essential functions of her job satisfactorily while doing so. Among other functions, her job description required her to monitor the plan for patient care services, oversee the installation and maintenance of equipment, serve as a liaison to other departments, and evaluate employee performance. Even though she asserted she could do such tasks remotely, the court pointed out that she had to rely on reports from others to fulfill several of her responsibilities. On top of that, several of Ms. Kinney’s subordinates complained that her absence impaired department morale and efficiency,
In addition, Ms. Kinney did not dispute that the hospital’s at-issue safety protocol was a valid job requirement. Indeed, her job description contained a requirement of “using personal protective equipment as required.” Moreover, Ms. Kinney did not suggest that there was a reasonable alternative face covering that would allow her to achieve the purpose of the safety requirements.
“The fact that many employees were able to work remotely temporarily when forced to do so by a global health crisis does not mean that those jobs do not have essential functions that require in-person work over the medium to long term,” Judge Hamilton wrote. “Determining whether a specific job has essential functions that require in-person work has become much more of a case-specific inquiry,” he added.
The Seventh Circuit panel also affirmed the U.S. District Court for the Southern District of Indiana’s dismissal of her related Title VII and FMLA claims.
