In today’s hyper-connected society, there are an increasing number of employers who have instituted policies permitting their employees to work from home in certain circumstances. The U.S. Court of Appeals for the Fifth Circuit, however, held that is not the case for litigation attorneys. In-office attendance is an “essential duty” for a litigation attorney in the context of the American with Disabilities Act (ADA).”
Renee Credeur, a litigation attorney working in the Attorney General’s office in Louisiana was granted a temporary accommodation to work from home following a kidney transplant. After approximately six months, her supervisor denied her continuing request to work from home and Credeur filed a lawsuit alleging, among other claims, failure to accommodate under the ADA. The District Court for the Middle District of Louisiana granted summary judgment in favor of the Attorney General’s office and Credeur appealed.
A failure to accommodate claim under the ADA requires the plaintiff to prove: (1) that she is a “qualified individual with a disability;” (2) the disability and its consequential limitations were known by the covered employer; and (3) the employer failed to make “reasonable accommodations” for such known limitations. “Qualified” under the ADA means a plaintiff is able to “perform the essential functions” of her job “with or without reasonable accommodation” (42 U.S.C. § 12111(8)). Therefore, the crux of the Credeur case was whether regular office attendance is an essential function of being a litigation attorney. The Court stated that “there is general consensus among courts that regular work-site attendance is an essential function of most jobs.”
The EEOC has issued informal guidance on working from home and recognizes that for some jobs, the essential duties can only be performed in the workplace. For example, working from home may not be feasible if the job requires “face-to-face interaction and coordination of work with other employees,” “in-person interaction with outside colleagues, clients, or customers,” or “immediate access to documents or other information located only in the workplace.” (See the EEOC Fact Sheet, Work At Home/Telework as a Reasonable Accommodation (Oct. 27, 2005). Additionally, “the employer’s ability to supervise the employee adequately” is another factor in determining whether an accommodation allowing an employee to work from home is reasonable.
Credeur argued that she had no problems working from home and her supervisors were always satisfied with her work. The court, however, held that an employee’s unsupported testimony that she could perform her job functions from home did not create a genuine dispute of fact to preclude summary judgment. Instead, the law requires the court to give greatest weight to the employer’s judgment. The court recognized that if this were not the case, then “every failure-to-accommodate claim involving essential functions would go to trial because all employees who request their employer exempt an essential function think they can work without that essential function.”
One of Credeur’s supervisors testified as to the need for day-to-day coordination with supervisors and staff and for adequate supervision of Credeur’s work and the hours she worked, which another one of Credeur’s supervisors testified was more difficult to accomplish when Credeur was working at home. Credeur’s supervisors also emphasized that being a litigator with the Attorney General Office requires being part of a team and attorneys frequently need “to bounce ideas” off other members of the team at the office.
Cases holding that working from home is a reasonable accommodation under the ADA are scarce. In Humphrey v. Mem’l Hosps. Ass’n, the Ninth Circuit reversed summary judgment that was granted in favor of the employer, holding that a genuine issue of material fact existed as to whether physical attendance was an essential job function for a medical transcriptionist. The record in Humphrey was clear that the employer allowed other medical transcriptionists to work from home and that being at home did not affect the essential functions of her job – typing and transcription.
In Hanlon v. Missouri Dep’t of Health & Human Servs., the U.S. District Court for the Western District of Missouri distinguished Humphrey, finding that a fiscal administrative manager was not qualified to perform the essential functions of her job from home because her job required supervision, directing, and the management of staff.
Similarly, in the Eighth Circuit in Morrissey v. Gen. Mills, Inc., an employer was not required to offer working from home as a reasonable accommodation to an inventory accountant who had a lung condition, because it would require the employer to hire a courier to deliver invoices to the employee’s home each week, imposing an undue burden on the employer.
Ultimately, cases on this ever-increasing trend to work at home and whether that is a reasonable accommodation are fact-specific and still developing. The Credeur decision is supportive of the fact that requests to work from home for an unlimited time period are not going to be a reasonable accommodation under the ADA for professionals such as litigation attorneys whose very jobs require virtually constant contact and interpersonal communication with other lawyers, litigants and courts. In addition, the decision emphasizes that courts must give weight to the employer’s own judgment about what constitutes an essential job function. As such, this case amplifies the importance of employers having accurate and up-to-date job descriptions which define the essential functions of each employee’s position.