Is remote work losing favor with employers? GM recently sent a letter to employees that as of January 2024, it will strictly enforce its rule that employees be on-site three days a week with limited exception.
Employees are pushing back, including those seeking reasonable accommodations due to a disability.
Last month, the 11th U.S. Circuit Court of Appeals sided with the employer in a lawsuit filed by an employee terminated in April 2019 where she sought a reasonable accommodation to work part time and remotely. The court ruled that the employer demonstrated these were essential job functions. Under federal law, employers do not have to remove essential job functions to accommodate an employee.
The employee, Cierra Geter, sued her employer, Schneider National Carriers Inc., a transportation and logistics company with 24/7 operations, for violation of the Americans with Disabilities Act when it terminated her after she sought an accommodation.
Geter alleged she was diagnosed with post-traumatic stress disorder and took a leave of absence under the Family Medical Leave Act. When this period ended, she sought accommodations to work part time and remotely. The company temporarily accommodated her, but then she continued to ask for these accommodations and was eventually terminated after the proposed accommodations appeared permanent.
The central issue in the case was whether Geter was “qualified” to do her job with or without reasonable accommodation.
Geter worked as an area planning manager (APM), and a primary duty of her role was supporting drivers. Her job description included “regular and consistent attendance and timeliness.”
Geter worked a grueling schedule — three days a week from 11 p.m. to 10 a.m., sometimes working alone.
It went undisputed that drivers appreciated when APMs were on-site, and this was a reason for the expectation by the employer to have her on-site when working.
The company’s “Flexible Work Accommodation” policy permitted flexible work arrangements at the discretion of the company. The company’s “Remote Work Policy” permitted telework at the approval of supervisors. Remote work was designed to be temporary, and the company did not allow “perpetual remote work.”
The appeals court concluded that full-time work was an essential job function, even though the job description did not explicitly state the job requirement was full time, and the employer’s flexible work arrangement policy permitted flexible work on a case-by-case basis.
A key analysis was the court’s consideration of the consequences of not requiring the incumbent to perform the function. The fact that the employer temporarily got by during a short leave of absence is not dispositive. The court held that the employer was “entitled to substantial weight” on essential job functions.
In holding that in-person work was also an essential job function, the court rejected the employee’s argument that the company was able to make alternative arrangements during COVID-19 as evidence it could be performed remotely. The court held, “This argument lacks merit. The bare feasibility of temporarily suspending a function in response to the COVID-19 pandemic does not demonstrate that the function was not essential.”
The court added, “Because Geter’s argument that Schneider should return to its pandemic-era policies collapses into an argument that Schneider should effectively excuse Geter from performing a fundamental function of her job, we reject it.”
There is a definite divide on what employees want and employers believe they need relative to on-site attendance for office jobs. Employers are seeing the negative effect of remote work to the company’s culture and, like GM, are taking a firmer stance on expectations.
To address requests for accommodations to work remotely, employers need to consider all requests on a case-by-case basis and should never flat-out reject a request for an accommodation. They are required to engage in the interactive process to determine if a reasonable accommodation can be provided. Employers should be able to defend their decisions if they determine that on-site attendance is an essential function, including considering the job description and the impact on the employer if the employee failed to work on-site. Mere preference does not amount to an essential job function.
Ideally, job descriptions outline whether predictable, reliable and on-site attendance are essential to successful performance of the job.
Employers also have a duty to determine if there is a vacant open position for which the employee is qualified as an accommodation if the employer determines it cannot provide a reasonable accommodation for the employee’s current role. This would be a lateral transfer or a demotion (the employer is not required to give a promotion), and the employee must be fully qualified for the position.