Eighth Circuit: Remote Work Can be a Permanent Reasonable Accommodation

The United States Court of Appeals for the Eighth Circuit recently issued a significant decision for employers who have flexible hybrid work from home policies and are confronted with a request from an employee to permit remote work as a reasonable accommodation for a disability, at least when doing so on an intermittent basis. 

In Mobley v. St. Luke's Health System, Inc., 2022 WL 16955465 (8th Cir.  Nov. 16, 2022), the Eighth Circuit held that an employee could demonstrate a prima facie case of disability / failure to accommodate discrimination because he had been allowed to work remotely on other occasions pursuant to his employer’s flex policy when he did not need to do so as an accommodation, and he had done so successfully.

Plaintiff was a Patient Access Supervisor at St. Luke’s Hospital in Kansas City who had multiple sclerosis (MS). For several years, he did not need any accommodations for his MS. The employer had periodically allowed him to work remotely on various occasions pursuant to its hybrid work from home policy, and his performance evaluations indicated he had done so successfully. After he began to experience periodic flare-ups of his MS, plaintiff asked to work remotely during the flare ups as an accommodation. At first the employer allowed it, but then began denying the remote work accommodation, telling him the employer would consider his requests for remote work only on a case-by-case basis and when denied, he had to either take intermittent FMLA leave and/or use PTO. The employee resigned and sued, alleging among other claims, disability / failure to accommodate discrimination in violation of the Americans with Disabilities Act (ADA) and the Missouri Human Rights Act (MHRA), and constructive discharge. The district court granted the employer’s motion for summary judgment.

On appeal, the Eighth Circuit held the employee had demonstrated an issue of fact sufficient to preclude summary judgment as to whether he had established a prima facie case of disability / failure to accommodate discrimination.  The Court concluded the employee  could potentially show that he “was able to perform the essential functions of his job through his proposed accommodation of teleworking while he experienced a flare-up of his condition.” Despite the employer's claiming that the employee might need to be on-site, the court pointed out that when the employee had worked remotely on other occasions, he “continued to receive positive performance reviews, reflecting that he was able to effectively supervise his employees despite not being on site.”  Nevertheless, the Court affirmed the grant of summary judgment because even if plaintiff had established a prima facie case, he had not generated a material fact issue on the employer’s bad faith during the interactive process.  The employer had denied his accommodation request on only a single occasion before he resigned, and the employee made no effort to discuss the case-by-case decision method suggested by the employer.  In other words, the employee had not sufficiently engaged with the employer to generate a factual record sufficient to warrant a finding of bad faith in the interactive process or that the employer’s conduct had worked a constructive discharge.

Although summary judgment for the employer was affirmed, the opinion is noteworthy because of its discussion of whether remote work can be a reasonable accommodation, and implicit observation that a remote work option may indicate that on-site presence is not an essential function, even though the employer maintains that it is.  The Mobley decision involved only a request for a remote work accommodation on an intermittent basis, e.g., when a flare-up of a chronic condition occurred.  The unanswered question is whether an employer may avoid the conclusion that on-site presence is not an essential function when confronted with a request for a full-time permanent remote work accommodation. 

As is often the case, document, document, document. First, if an employer has a flexible remote work policy, the employer should carefully scrutinize its job descriptions and determine whether on-site presence is an essential function, and if so, amend its job descriptions accordingly. Even if the remote work policy is a hybrid policy (meaning remote work will be allowed only for a portion of the workweek), then the policy and/or job descriptions should expressly state the parameters of required on-site work and tolerance for remote work.  Second, when an employee is not being required to perform some essential functions temporarily (i.e., on-site presence) – for whatever reason -  we recommend that the employer document that it is voluntarily, temporarily not requiring some essential functions to be performed.  Performance evaluations should make clear that the employee is not being evaluated on essential functions he or she is being permitted to not perform, and thus the review is not comprehensive.  The goal of this documentation is to ensure that expectations – and essential functions – are clearly communicated, and the employer should not be penalized for being flexible when doing so does not impose an undue burden on its operations and other personnel.

Navigating the issues surrounding reasonable accommodations and remote work policies is complicated. Nyemaster Goode’s Labor & Employment Department regularly assists our clients in ADA compliance. Please do not hesitate to contact us with any questions about the ADA and the applicability of its requirements to your business.