A U.S. District Court judge for the Eastern District of Virginia ruled earlier this month that a Norfolk Public Schools principal was not entitled to work remotely as a reasonable accommodation after students returned to on-site learning.
The principal, Cheryl Jordan, sought to work remotely from Jan. 3, 2021, to June 30, 2021, as a reasonable accommodation for a medical condition. She provided medical documentation that the school building created an environmental hazard for her condition, and that remote work would provide a reasonable accommodation.
The only accommodation she sought during this time was remote work. She later requested a transfer to a newer school.
Under the Americans with Disabilities Act, Jordan could prove that she had a disability and that this disability was known to her employer. However, the school argued, and the court agreed, that an essential function of her job (especially when students returned to on-site learning in March 2021) was on-site attendance.
As noted by the court, a reasonable accommodation is one that “‘enables a qualified individual with a disability … to perform the essential functions of (a) position” and that “the employer does not have to provide ‘an accommodation that would require other employees to work harder,’ nor does the employer have to change ‘the essential functions of’ the position to accommodate an employee.’”
Upon being made aware of a request for an accommodation, the employer is expected to engage in the interactive discussion to determine whether the accommodation is reasonable and can be effective.
The employee bears the burden to identify reasonable accommodations that would allow her to perform her job. The only request by Jordan during this time was remote work, which NPS denied without engaging in an interactive discussion.
According to the decision, “’an employer will not be liable for failure to engage in the interactive process if the employee ultimately fails to demonstrate the existence of a reasonable accommodation that would allow her to perform the essential functions of the position.” The court ruled that because Jordan proposed remote work only as an accommodation during this time period, “NPS was only required to consider whether Jordan could perform all the essential functions of her position fully remotely.”
Jordan argued that she successfully performed her job remotely during the COVID-19 pandemic and that she could work remotely again and accomplish all her essential functions.
On this point, the court held: “During the COVID-19 pandemic, employers permitted telework and frequently excused performance of one or more essential functions.” It added: “However, these temporary pandemic-related modifications ‘of certain essential functions does not mean that the essential functions have somehow changed. Thus, once NPS required students and employees to return for in-person instruction, Jordan was required to resume her ‘job’s essential functions’ as they ‘were in the pre-COVID era.’ According to NPS, Jordan’s essential functions require physical presence at her assigned school building, and no reasonable fact-finder would conclude otherwise on this record.”
However, the court refused to dismiss Jordan’s allegation that the school failed to provide her reasonable accommodation upon her subsequent request to be transferred to a specific newer school.
Instead, NPS reassigned Jordan to a similarly aged school, although environmental tests conducted at that school determined it had no environmental hazards. However, the court said a jury could determine whether the school failed to properly consider and grant her request.
The court also refused to dismiss Jordan’s retaliation claim, where she alleged that shortly after she filed a charge of discrimination with the Equal Employment Opportunity Commission, that NPS transferred her to a school not of her choice. She claimed this was retaliation for her filing the charge of discrimination. The court ruled that a jury needed to make the determination of whether the transfer amounted to retaliation.
Employers need to be intentional in their response to an employee’s request for reasonable accommodation, follow its processes and document its decision-making. Details matter in these cases, such as job descriptions, how the employee performs the job, job postings and the like. Each request requires a factual determination, and all situations require case-by-case decision-making. Employers should be as flexible and adaptable as possible to grant the request, keeping in mind that they should not remove essential job functions or lower job performance standards in granting accommodations.
If predictable and reliable on-site attendance is necessary for the performance of essential functions, employers should make this clear in job descriptions.
In 2015, the 6th Circuit Court of Appeals ruled that regular and predictable on-site job attendance was an essential function, and a prerequisite to perform other essential functions, of an employee’s job of resale-buyer where the company required face-to-face interaction for collaboration. After the pandemic, employers will likely need to be clear on why this is necessary, given available virtual tools, but the courts have consistently held that employers are best to determine what they need and what is essential for performance of their jobs.