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Fifth Circuit Decision Holds Employee Was Not A Qualified Individual Under The ADA When Essential Job Function Required Office Attendance and She Requested Unlimited Telecommuting

Published by and on July 28, 2017

The Fifth Circuit’s decision lends support to employers within its jurisdiction that refuse to permit “unlimited” telecommuting as an accommodation for positions that require onsite attendance as an essential job function.

In Renee Credeur v. State of Louisiana, the plaintiff, a litigation attorney in the Louisiana Attorney General’s Office, suffered complications from a kidney transplant and sought to telecommute for six months while she recovered. Her employer approved the request. One year later, the plaintiff suffered additional complications and went on a FMLA leave. Upon exhausting her FMLA leave, she again requested telecommuting as a reasonable accommodation. Her employer approved the request and communicated that it sought to eventually reintegrate the employee into her normal work hours and duties. Two months later, the employer informed the plaintiff that her substandard performance and frequent absences required reassignment of some of her work to other attorneys. Soon after, the plaintiff renewed her FMLA leave and requested to telecommute for a third time. The employer denied this request, but provided an alternative accommodation of unpaid leave. The plaintiff then returned to work and resigned from her employment about four months later.

Prior to her resignation, the plaintiff filed suit alleging failure to accommodate, harassment based on disability, and retaliation. The district court granted summary judgment in favor of the employer. On the plaintiff’s failure to accommodate claim, the district court found that the plaintiff was not a “qualified individual” within the meaning of the Americans with Disability Act (ADA) because she could not perform an essential function of her job —- regular attendance in the office. Alternatively, the district court held that there was no issue of fact to dispute that the employer reasonably accommodated the plaintiff’s known limitation. The district court also found that the conduct alleged did not constitute harassment and was not severe or pervasive, and the plaintiff could not maintain her claim for retaliation as she suffered no adverse employment action. The plaintiff appealed.

The Fifth Circuit Court of Appeals affirmed, holding that plaintiff was not a qualified individual with a disability as she could not perform an essential function of her position (regular office attendance) with or without reasonable accommodation. The Fifth Circuit’s analysis centered on whether the employee could demonstrate a prima facie case for her claim of failure to accommodation under the ADA, which required that (1) the plaintiff 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.”

Under the first element, an individual is qualified if they can perform the essential functions of a position with or without reasonable accommodation. Here, the employer presented evidence that working on site was an essential function of the plaintiff’s job. Plaintiff disagreed, but provided evidence only of her subjective judgement that she could have performed the essential functions of her position while telecommuting.

In resolving the issue, the Court stated that the ADA indicates that the “greatest weight” must be given to the employer’s judgement as to the essential functions of the position, so long as the judgment is evaluated alongside the employer’s policies and practices. The Fifth Circuit also noted that it, and other Circuits, have held that work site attendance is an essential function of most jobs especially where the job is “interactive” and involves a “significant degree of teamwork.” The Court cited to the EEOC informal guidance that states telecommuting may not be feasible if a 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.” The Court found that the plaintiff’s unsupported testimony that she could perform her job function from home did not create a genuine dispute of fact to preclude summary judgment in favor of the employer. The Fifth Circuit held that “An increasing number of employers have policies permitting telecommuting under certain circumstances. Construing the ADA to require employers to offer the option of unlimited telecommuting to a disabled employee would have a chilling effect.”

The Fifth Circuit also affirmed that the conduct alleged by the plaintiff was not harassment, and that even if such conduct was harassment, it was not sufficiently severe or pervasive to create an abusive working environment. The Court also found that the plaintiff did not suffer an adverse employment action to maintain an actionable retaliation claim and the record did not support an inference that any of the employer’s action was taken in retaliation for her protected activity.

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Welter Insight

The Fifth Circuit’s decision lends support to employers within its jurisdiction that refuse to permit “unlimited” telecommuting as an accommodation for positions that require onsite attendance as an essential job function. Employers should, however, ensure that onsite attendance is reflected as a job function in its applicable job descriptions and realize that the interactive process requires the employer to discuss with the employee other possible accommodations. If telecommuting is offered as a reasonable accommodation for positions that require onsite attendance, employers should clarify in writing that such an accommodation is temporary, will be reviewed regularly, and is intended to allow the employee to resume his or her attendance onsite as soon as reasonable.

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