Most cases that address the issue of whether or not working in the office is an essential function of a job approach the question in summary fashion, commenting that working in the office is an essential function of most jobs (just like regular, reliable and predictable attendance). Therefore, I was surprised to read the court’s opinion in Slayton v. Sneaker Villa, Inc. (E.D. Pennsylvania 3/20/17) denying summary judgment to an employer on an employee ‘s ADA claim, and pronouncing that she was entitled to a jury trial to determine whether or not working the office as well as travelling on business were essential job functions.

Employer denies accommodation. The employee was a Corporate Recruiter who was seriously injured in a bus accident approximately 80 days into her employment. She sustained compression fractures of multiple vertebrae in her neck and back and a head injury. She was out of work on STD for two months and then asked to work from home full time for the next four weeks when she anticipated she would be able to return to work full time. HR denied the request on the ground that the employer had held her position open for two months during a critical time as it was constantly opening new stores and creating new positions and that this required a constant level of support to recruit Store Support and store management candidates. HR also said that the employer had job fairs that must be attended, positions that must be posted and monitored, interviews that must take place, and other duties that must be completed. HR advised her that her request to work from home “will not work for us.” The HR Director told the employee that she was sorry that the accident happened but that the employer needed to fill her position for business needs.

Employee asks employer to reconsider and is fired. The employee responded to HR emphasizing that she was only asking to work from home for a maximum of 4 weeks.  She told HR that she could perform all of the essential functions of the duties listed at home with the exception of job fairs. The other duties, however, just required a computer with an internet connection, a phone with long distance and account access with logons, “all of which I have.”  She also said that during this interim period, she may be able to work part-time in the office and the remainder of the time at home. The next day, the employee went to the employer’s office and met with HR to discuss her employment. The employee said that HR told her that her employment was being terminated. She turned in her company key card and employee discount card before she left the premises.

Working in the office. The employer argued that physical presence in the office was an essential job function. However, the job description did not list presence in the office as an essential job function. The court relied upon the employee’s testimony that she spent most days sitting her office doing job positions and phone screenings.   

Ability to travel. The employer also argued that the ability to travel to job fairs was an essential function. The court noted that while the job description listed the ability to travel under “Qualifications/Skills & Knowledge Requirements,” it was not listed under “Principal Duties and Responsibilities.” The court recognized a distinction between a “requirement” of a given position and an “essential function” for purposes of the ADA, reasoning that the “essential function” requirement focuses on the desired result rather than the means of accomplishing it. The court also emphasized that the employee did not, in fact, actually travel  to job fairs – even though she had requested to do so. 

Failure to accommodate – no discriminatory intent required. The court concluded that an employer’s failure to provide a reasonable accommodation is an adverse action under the ADA, and that to succeed on her ADA failure to accommodate claim, the employee did not have to prove discriminatory intent or bias. 

Punitive Damages?  The court granted summary judgment for the employer on the employee’s request for punitive damages under the Pennsylvania Human Relations Act and for her ADA retaliation claim. However, the court concluded that punitive damages are a potential remedy under the substantive ADA discrimination claims (disparate treatment and failure to accommodate) and that such damages are available when the employee demonstrates that the employer engaged in a discriminatory practice “with malice” or “with reckless indifference.”

Lessons for employers  First and foremost, review those job descriptions. They need to use the phrase “essential function” (not “requirement”) and make sure that key essential functions related to potential ADA accommodations are included (including, for example, full time attendance in the office and regular, reliable and predicable attendance).  Second,  be cautious about denying relatively short-term accommodations. Here, the employee indicated that she only needed to work from home for 4 weeks before she could return to work full time in the office. An employer would be in better standing with the court if it allowed the initial 4 week request. Doing so does not mean that an employer has to allow it forever. Rather, the employer should use the opportunity to send something in writing to the employee documenting that full time presence in the office and the ability to travel are both essential function s of the job and that while her accommodation can be granted on a sort term basis, it cannot be granted on a longer term basis. This probably would have made the judge more sympathetic to the employer.