IS INDEFINITE REMOTE WORK A REASONABLE ACCOMMODATION UNDER THE ADA?

Article by: Geoffrey A. Lindley and Nakota G. Wood

[A] reasonable accommodation is one that will enable the employee to perform the essential functions of the job either presently or in the near future.

Rogers v. Unified Gov’t of Wyandotte County/Kansas City, Case No. 23-2143-JAR, 2024 U.S. Dist. LEXIS 189119, at *33 (D. Kan. Oct. 17, 2024) (citations omitted).

Reasonable Accommodations Generally

The Americans with Disability Act (“ADA”) prohibits discrimination against qualified individuals because of their disability with regard to employment applications, terminations, and the terms and conditions of employment. 42 U.S.C. § 12112(a). Absent undue hardship on the part of an employer, refusal to make reasonable accommodations to employees with disabilities is one type of discrimination that violates the ADA. 42 U.S.C. § 12112(b)(5)(A). Accommodations are reasonable when they enable employees to perform the essential functions of their job currently or in the near future. Aubrey v. Koppes, 975 F.3d 995, 1006-07 (10th Cir. 2020). Nevertheless, under the ADA, an employer is not required to suspend or remove the essential functions of a job. The determination as to what constitutes a reasonable accommodation is fact specific and should also be made on a case-by-case basis. Bielski v. Green, 674 F. Supp. 2d 414,424 (W.D. N.Y. 2009) (citations omitted).

With the above in mind, the District of Kansas recently addressed an employee’s claim that her employer violated the ADA by not granting her request for indefinite remote work.

Rogers v. Unified Government of Wyandotte County/Kansas City

Factual Background

Jill Ann Rogers (“Rogers”) began working for the Kansas City Board of Public Utilities (“BPU”) in 2003, and in 2013, she was promoted to Assistant Purchasing Agent. Rogers, 2024 U.S. Dist. LEXIS 189119, at *3. In 2016, Rogers was diagnosed with multiple sclerosis (“MS”) which caused her to have mobility issues. Id.

Because of these issues, Rogers requested that BPU install automatic and push doors to the main entrance and bathroom and provide her with reserved parking near the building’s entrance. Id. BPU complied with all of these requests, but the requested doors would malfunction occasionally, and, at Rogers’ insistence, her reserved parking spot was moved five times for various reasons. Id. at *3-4. Although Rogers never requested an electric scooter, BPU provided her with one to use at work and designated another employee to assist in physically transferring her between her car and the scooter. Id. at *4.

When the Purchasing Director retired in 2017, Rogers, in addition to being the Assistant Purchasing Agent, was named the acting director and remained in these positions for four years. Id. at *5. When BPU began actively searching for a Director of Purchasing and Supply Chain in November of 2020 through an outside agency, Rogers applied for the position. Id. at *6. BPU required applicants to have “a bachelor’s degree in management, procurement, finance, or a business-related degree; a master’s degree or MBA would be considered a ‘plus.’” Id. The job announcement also listed several functional competencies, including: “(1) a minimum of ten years of experience in purchasing and supply chain; (2) preferred experience with governmental or quasi-governmental entities; (3) experience with bidding process for major construction projects; (4) experience with requests for proposals and master service agreements; and ([5]) excellent negotiation skills.” Id.

Ultimately, BPU hired an external candidate, Becky Aldinger (“Aldinger”) because of her relevant work experience. Id. at *7. Aldinger had a long and extensive career in supply chain and procurement with other utilities and electricity companies and had managed all procurement-related activities for contracts for power delivery and power generation projects. Id. at *7-8. Conversely, Rogers’ experience met only the minimum requirements for the job. Id. at *8.

BPU’s Stance on Remote Work

While BPU had no policies prohibiting remote work, prior to the COVID-19 pandemic (the “Pandemic”), BPU had not allowed its employees to work remotely. Id. at *9. However, during the Pandemic, BPU allowed some employees to work from home for three weeks. Id. at *10. At the end of those three weeks, all employees were required to return to work in-person, unless they were required to quarantine. Then they were permitted to work remotely for up to a week. Id.

Before the Pandemic, Rogers started to receive chemotherapy treatments for her MS every six months. Id. She would receive her treatments on Fridays and be off the following work week on sick leave. Id. Because Rogers had a compromised immune system, during 2020 and as a result of the Pandemic, BPU allowed Rogers to work remotely for three to four weeks around the time of her chemotherapy treatments as an accommodation. Id.

In February of 2021, Rogers requested to work from home before and after her chemotherapy treatments, and BPU permitted her to do so. Id. at *10-11. During this time, Rogers learned that BPU hired Aldinger for the Director of Purchasing and Supply Chain position. Id. at *11. Rogers was then asked by BPU when she would be back in the office so that Rogers could assist in training and onboarding Aldinger. Id. In March of 2021, Rogers informed BPU that her doctor would not provide her with a note to return to work and requested to work from home for an indefinite time period. Id. at *12-13. Even though this request was denied by Rogers’ supervisor, BPU offered Rogers twelve weeks of FMLA leave, long-term disability, and to leave her job open to her for two years. Id. at *13.

Rogers eventually exhausted her FMLA leave and went on long-term disability. Id. She then filed a charge with the Kansas Human Rights Commission and U.S. Equal Employment Opportunity Commission (“EEOC”), alleging that BPU failed to accommodate her by refusing her indefinite remote work request. Id. at *14-17. Rogers subsequently filed a federal lawsuit, alleging, among other things, that BPU failed to accommodate her in violation of the ADA by refusing her request to work from home indefinitely. Id. at *21.

Rogers’ Failure-to-Accommodate Claim

Rogers claimed that BPU illegally refused to accommodate her “by failing to allow her to work remotely.” Id. at *26. To establish a prima facie case for a failure-to-accommodate claim, an employee must prove: “(1) she is disabled; (2) she was otherwise qualified; (3) she requested a plausibly reasonable accommodation; and (4) [her employer] refused to accommodate her disability.” Id. at *30 (citations omitted). The primary issue regarding her remote work request was whether it was plausibly reasonable both factually and legally.

Indefinite Remote Work

In analyzing Rogers’ claim, the Court considered Tenth Circuit precedent that “prescribes a burden-shifting formula that first requires a plaintiff to show that the requested accommodation is reasonable on its face; it is not facially reasonable if the accommodation would not enable the employee to perform the essential function of the job.” Id. at *33-34 (citing Dansie v. Union Pac. R.R., 42 F.4th 1184, 1194 (10th Cir. 2022)) (emphasis added). If a plaintiff is able to prove this, the burden then shifts to the employer to show that the accommodation would cause undue hardship. Id. at *34. If an employer is able to establish undue hardship, then the plaintiff must “produce evidence of her individual capabilities and suggestions for a possible accommodation that rebuts [the employer’s] evidence.” Id.

BPU was able to establish that all BPU positions, including Rogers’ position, required physical presence in the workplace because “BPU provides critical infrastructure and services to the population of Wyandotte County, Kansas[,] [including] suppli[ng] water and electricity to the county and the metropolis of Kansas City, Kansas.” Id. at *35. The Court reasoned that courts “generally defer to the employer’s judgment as to what functions are essential” and that “physical presence in the workplace is an essential function of most jobs.” Id. (citations omitted).  

Rogers argued that physical presence in the office was not an essential function of her job because she had worked remotely in the past. Id. at *38. The Court held that this argument failed for two reasons. First, “an employee cannot create a genuine, material issue of fact based solely on her opinion of what the essential functions of the job are.” Id. The Court further explained that the fact that Rogers’ job descriptions did not expressly state that physical presence was required was not dispositive of whether physical presence was in fact an essential job function. Id. Second, because Rogers requested “to work remotely for an indefinite period of time, she [could] not show that [was] a facially reasonable request, given that a reasonable accommodation is one that will enable the employee to perform the essential functions of the job either presently or in the near future.” Id. (citations omitted) (emphasis added).

The Court noted that, each time Rogers previously worked from home, she did so for a definite and limited period of time. Id. at *39. However, the indefinite period requested by Rogers and at issue in this case provided BPU with no duration, expectation, or explanation as to when Rogers might return to the office. Id. As a result, the Court held that Rogers failed to show that her indefinite remote work request was a facially reasonable accommodation. Id. at *40. Therefore, the Court dismissed Rogers’ claim that BPU discriminated against her under the ADA by failing to grant her request to work from home indefinitely.

Employer Takeaways

This case demonstrates the importance of working with employees with medical conditions to see if there is a reasonable accommodation that will allow them to perform the essential functions of their jobs. For when a legal claim comes, it helps to be able to demonstrate to the court how reasonable the employer has been it its communication with and assistance to an employee. Such was the case here, where the employer bent over backwards to assist the employee in performing the essential functions of her job. Therefore, when it came time for the employer to draw the line at indefinite remote work, it was a harder sell by the employee to prove that the employer had violated the ADA.

Regarding written policies and job descriptions, it would have been best if BPU had in writing that in-person work was essential to the Rogers’ position. Nevertheless, actual practice is as important, and in most cases more important, than what is in writing. Therefore, it helped the employer to be able to show that remote work had only been allowed in rare circumstances in the past. Nevertheless, employers should still ensure that they have written policies and job descriptions that match what is required and what actually takes place in the workplace.

Lastly, employers should handle requests for indefinite accommodations carefully. Courts have held that indefinite leave is never a reasonable accommodation. However, that is not exactly what the court held here with regard to remote work. The court determined that indefinite remote work was not a reasonable accommodation in this case because in-office presences was an essential function of the job at issue. And if Rogers had to be out of the office indefinitely, whether attempting to work or otherwise, she could not perform the essential functions of her job presently or in the near future.  However, some indefinite accommodations that will allow an employee to perform their essential job functions may be reasonable, such as a permanent parking spot near the work location.