Tenth Circuit refuses to second-guess employer’s judgment in ADA accommodation case
The ongoing pandemic has made telework much more common for many workplaces. As we begin to return to normalcy, employees may question whether they need to be physically present at work when telework has proven to be feasible. In most situations, this question is one that is still up to the employer to determine. If the employer believes physical presence is valuable to the organization or the employee’s work, it may require its employees to work in person. A recent Tenth Circuit Court of Appeals decision highlighted this principle in the context of a former employee’s claim that her employer failed to accommodate her request for a flexible work-from-home schedule.
Hospital offers flex schedule accommodation, but with conditions
In the case, plaintiff Joan Unrein was a clinical dietician who became legally blind due to a form of macular degeneration. This meant she could no longer drive herself to work, which was a 120-mile daily roundtrip commute. Unrein asked the hospital to permit her to work a flexible schedule dependent on her ability to secure rides to and from work. The hospital initially agreed to this flexible schedule, but with conditions. The dietician was required to communicate with her supervisor about any necessary schedule changes, and she was expected to be physically present on-site at the hospital at least 32 hours per week. The hospital informed Unrein that her presence on-site was required in order to provide quality dietician services and ensure patient care was not compromised. The hospital also told her that it reserved the right to end the flexible work schedule if at any time it concluded the accommodation was unreasonable, unduly burdened other employees, reduced the quality of patient care, or risked the safety of the plaintiff or others. Notably, Unrein could perform her job duties when she was at work because the hospital purchased magnification equipment that enhanced her ability to read.
The parties tried the flexible schedule for 15 months. It ultimately proved problematic, as Unrein’s physical presence at the hospital was unpredictable. Her rides frequently were unavailable or would back out at the last minute, including in the winter when weather was worse. She did not have public transportation between her home and the hospital, and could not arrange for a ride service. The hospital received complaints about Unrein not being physically present at the hospital, and her employer believed her erratic schedule contributed to low patient satisfaction scores.
Requested accommodation incompatible with essential job functions
The hospital informed Unrein that it was ending the flexible work schedule, which led the dietician to request to telework full-time. The hospital denied this request because her position required more than four hours of in-person face-to-face interactions per day. The hospital placed the Unrein on full-time medical leave with an unknown return-to-work date. This arrangement continued even after she exhausted all of her leave. After seven months of full-time medical leave with no return-to-work date and after she was approved for long-term disability and Social Security benefits, the hospital finally terminated her employment. Even then, the hospital offered to continue discussing other accommodations with Unrein and encouraged her to apply for other open positions for which she was qualified.
Court rules telework “unreasonable” given job’s essential functions
The Tenth Circuit noted that “’courts must give consideration to the employer’s judgment as to what functions of a job are essential.’” Courts generally will not “’second guess the employer’s judgment when its description is job-related, uniformly enforced, and consistent with business necessity.’” The Tenth Circuit did not find any error with the lower court’s conclusion that the plaintiff’s job duties required her to be “’physically present at the hospital for at least four hours per work day and to have a set and predictable schedule to ensure quality patient care.’”
The Tenth Circuit determined that the dietician’s request to telework was unreasonable “both as a matter of law and common sense.” The Tenth Circuit noted that an employee cannot as a matter of law make a reasonable request to be relieved from an essential function of her position. An essential function of a position does not have to be eliminated as an accommodation. This was exactly what the plaintiff was requesting. The 15-month period when she was permitted to work the flexible schedule proved that she could not guarantee “when, if, or how long she could be physically present at the hospital on any given day.” The plaintiff was thus seeking not to be required to be physically present at the hospital on a set and predicable schedule, which the court said was “an unreasonable accommodation as a matter of law.”
The Tenth Circuit addressed the transportation issue directly. The court stated that transportation to and from work is not an essential function of the position the plaintiff held, and the hospital had no legal obligation to accommodate the plaintiff’s transportation barrier. The transportation issue was a problem that was outside the workplace, and one over which the employer had no control. The transportation barrier was one Unrein could have eliminated by moving closer to the hospital, for example, but did not.
The court found no discrimination existed in how the hospital addressed the plaintiff’s disability and work situation. The court stated that the ADA “does not require the (hospital) to accommodate (plaintiff’s) transportation barrier, so her request for a flexible schedule was unreasonable.”
This case provides clarity for employers in addressing flexible telework requests, which are becoming more frequent since the pandemic. In addition, employers should take note of how the hospital approached its accommodation obligation. The hospital tried the flexible work schedule the plaintiff requested, but also informed her clearly of the hospital’s expectations under the flex schedule, including specific business reasons why her presence in the workplace was necessary. The hospital then offered an extended period of leave, and encouraged her to apply for other positions. This is a good example of the many and various tools employers can utilize to satisfy their accommodation obligations.
Unrein v. PHC-Fort Morgan, Inc., Case No. 20-1219, U.S. Court of Appeals for the Tenth Circuit