In a decision that will provide some solace to employers asked to permit remote work as a reasonable accommodation under the Americans with Disabilities Act, the United States Court of Appeals for the Fifth Circuit recently held that the ADA did not require the Louisiana Attorney General's Office to permit a litigation attorney to work from home indefinitely. In Credeur v. State of Louisiana, No. 16-30658 (5th Cir. June 23, 2017), the court determined that the employer did not fail to accommodate the attorney's disability in violation of the ADA by denying her request to work remotely because it considered regular on-site attendance an essential function of her job and the statute and regulations required the court to "give the greatest weight to the employer's judgment" on this issue.
Renee Credeur, who worked as a litigation attorney with the Louisiana Attorney General's Office ("AGO"), took FMLA leave from March to August of 2013 to address complications arising from a kidney transplant. At the conclusion of Credeur's FMLA leave the AGO temporarily permitted her to work from home as an accommodation in accordance with the ADA. When Credeur was unable to keep up with her caseload and complete certain administrative tasks while working from home, the AGO's Director of Administrative Services wrote to her in March 2014 and informed her that she would be required "to work up to 3-4 hours per day in the office (as tolerated)" and to "not work from home." Credeur did not return to work and instead took additional FMLA leave due to an infection beginning in April 2014.
In August 2014, the Director of Administrative Services sent Credeur a letter formally denying her request to work from home and explaining that AGO litigation attorneys "cannot work from home on a long term basis" as it "places considerable strain on supervisors and staff." Credeur returned to work without restrictions from August 2014 until her voluntary resignation in December 2014 but, during the intervening period, filed an action against the AGO alleging a failure to accommodate her disability, disability-based harassment and retaliation under the ADA and state law. The trial court granted summary judgment for the AGO and Credeur appealed.
ADA Accommodation Claim
On appeal the Fifth Circuit noted that in order to establish a prima facie case for failure to accommodate under the ADA, an employee must first show that he or she is "qualified" for the position by demonstrating an ability to perform the "essential functions" of the job with or without reasonable accommodation. Relying on EEOC regulations, the court determined that "the inquiry into essential functions is not intended to second guess an employer's business judgment with regard to production standards nor to require employers to lower such standards," and that "there is general consensus among courts, including ours, that regular work-site attendance is an essential function of most jobs."
The court found the AGO's policies and practices indicated that regular work-site attendance was an essential function of Credeur's job and that the AGO had consistently maintained this position, including in its written correspondence informing Credeur that "[l]itigation attorneys in the Attorney General's Office are not allowed to work from home except on rare occasions and only on a temporary basis." In addition, several other AGO attorneys had testified that the role of AGO litigation attorneys was interactive and team-oriented, which further supported the conclusion that office attendance was essential to the position. Accordingly, the court held that because the ADA does not require employers to "reallocate essential functions" of a job to accommodate an employee with a disability, Credeur was not qualified for her position and the AGO was entitled to summary judgment on her failure to accommodate and other ADA claims.
The Credeur decision offers welcome guidance for employers that permit employees to work remotely but have concerns that courts will require them to eliminate important restrictions on these policies in order to accommodate disabled employees. As the Fifth Circuit's opinion makes clear, construing the ADA to require employers to offer the option of unlimited telecommuting to disabled employees could have a "chilling effect" that would result in companies tightening their telecommuting policies simply to avoid liability, which would neither benefit employees nor promote the ADA's goals.
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