Parker Poe Adams & Bernstein LLP

Over the past several years, our practice has seen a marked increase in the number of employee accommodation requests that involve remote work. As communications technologies have improved, these employees regularly contend that they can perform their job functions from home, with infrequent or no appearances at the business location. In some cases, these requests are accompanied by persuasive medical justification. However in others, the employer has the impression that the working from home request is based more on employee preference than medical need. Earlier this month, the Eighth Circuit Court of Appeals denied an employee’s claim that the ADA required his employer to consider a telecommuting arrangement never mentioned by his doctor.

In Brunckhorst v. City of Oak Park Heights, the plaintiff suffered from a rare bacterial infection that caused him to miss a considerable amount of work. When FMLA leave expired, the employer contacted him to ask about accommodations that would be needed to allow him to return to work. The employee’s doctor responded that he could return to part-time work. In the meantime, the city concluded that the employee’s position was no longer needed and eliminated it. It offered him the option of a lower paying job, but the employee asked that he be allowed to perform such work from home. After several months of negotiations, he was terminated based on his failure to return to work.

The Eighth Circuit affirmed dismissal of the claim. The court noted that the plaintiff’s doctor never mentioned telecommuting, or stated that it was required to allow the plaintiff to resume his job duties. Employee preferences do not create required ADA accommodations. The Eighth Circuit found that the work in question could not be performed remotely. Interestingly, the court also rejected the plaintiff’s claims that the failure to hold his old job open during negotiations over his return constituted a failure to accommodate. The Eighth Circuit specifically rejected EEOC guidance stating that the ADA’s requirement for leave as a reasonable accommodation means that the employee’s job will be held open during this time period.

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