Under the Americans with Disabilities Act, employees with qualifying disabilities are entitled to receive “reasonable accommodations” in the workplace to allow the employee to perform the essential functions of his or her job. The employer’s awareness of a disability triggers its obligation to “initiate an informal, interactive process” to identify “potential reasonable accommodations” for the employee with the disability. 29 C.F.R. § 1630.2(o)(3). “A ‘reasonable accommodation’ is one that allows the disabled employee to ‘perform the essential functions of the employment position.’” Severson v. Heartland Woodcraft, Inc., 872 F.3d 476, 481 (7th Cir. 2017) (quoting 42 U.S.C. § 12111(8)). As such, the ADA does not require an employer to excuse a disabled person’s inability to perform a job’s essential tasks. Byrne v. Avon Prods., Inc., 328 F.3d 379, 380–81 (7th Cir. 2003). Indiana law mirrors the ADA’s reasonable accommodation mandates. To assist employers, the Equal Employment Opportunity Commission provides general examples of accommodations that are typically considered reasonable, including, for example, providing an accessible parking spot to an employee with a mobility impairment, or printing materials in Braille or large print for a visually impaired employee.
In 2008, the 7th Circuit held that generally, “working at home is not a reasonable accommodation.” Mobley v. Allstate Ins. Co., 531 F.3d 539, 548 (7th Cir. 2008) (citing Rauen v. United States Tobacco Mfg., 319 F.3d 891, 896 (7th Cir. 2003)). “The reason working at home is rarely a reasonable accommodation is because most jobs require the kind of teamwork, personal interaction, and supervision that simply cannot be had in a home office situation.” Rauen, 319 F.3d 891, 896 (citing Vande Zande v. Wis. Dep’t of Admin., 44 F.3d 538, 544-45 (7th Cir. 1995)).
In essence, the 7th Circuit — along with most other courts in the United States — held for years that a critical component of performing essential work functions was performing those functions from an employer’s premises. In March 2020, however, the world shifted. “At present, COVID-19 requires no introduction: the novel coronavirus causing this disease has spread around the world, resulting in an unprecedented global pandemic that has disrupted every aspect of public life.” Mays v. Dart, 974 F.3d 810, 814 (7th Cir. 2020).
Pursuant to the shutdowns and mandates issued because of the COVID-19 pandemic, working from home became a way of life — and a necessity for employers to keep their businesses afloat and for employees to keep their jobs. Unsurprisingly, as mask mandates were lifted and lifesaving vaccines became available, employers began shepherding employees back to their offices. But employees whose requests for work-from-home accommodations were previously denied as unreasonable pushed back, citing the ability to perform job functions at home as well as — or in some cases better than — in the office, and further arguing that medical conditions that may not have been considered a disability under the ADA pre-COVID were now considered disabilities that warranted accommodation.
As a result, many courts across the United States have analyzed how COVID-19 modified the definition of “reasonable accommodation” in ADA discrimination lawsuits.
The United States District Court for the Middle District of Tennessee foreshadowed the future of COVID-19’s impact on remote work as a reasonable accommodation when it stated in a 2021 case that “(t)he world was a much different place in 2016 and 2017, particularly when it comes to employees working remotely.” Brownlow v. Alfa Vision Ins. Co., 527 F. Supp. 3d 951, 953 (M.D. Tenn. 2021). This theme was echoed one year later in the Middle District of Alabama, when that court noted the “COVID-19 pandemic has ushered in a new wave of legal issues, not the least of which relate to the Americans with Disabilities Act.” Brown v. Roanoke Rehab. & Healthcare Ctr., 586 F. Supp. 3d 1171, 1173 (M.D. Ala. 2022).
In Peeples v. Clinical Support Options, Inc., the court held that an employee with asthma who had successfully “perform(ed) the essential functions of her job” while working remotely in the very early days of the COVID-19 pandemic and was denied a subsequent extension of her remote work accommodation was “likely to succeed on the merits of her failure to accommodate claim.” Peeples v. Clinical Support Options, Inc, 487 F.Supp. 3d 56, 60-64 (D. Mass. 2020). As such, the court issued a preliminary injunction stating the plaintiff was “entitled to telework as a reasonable accommodation pursuant to the ADA … .” Id. at 66. The court did not, however, analyze whether the plaintiff’s alleged disability, asthma, would still be considered a disability that required a reasonable accommodation after the cessation of the pandemic. Id. at 62.
Federal courts in Indiana have so far taken a different approach and have not necessarily eased their positions with regard to the reasonableness of a remote work accommodation, especially when an employer insists that in-person work is necessary for the employee’s successful job performance. In Kinney v. St. Mary’s Health, Inc., the plaintiff, who oversaw the imaging department at a hospital in Evansville and who had been primarily working from home since the start of the COVID-19 pandemic, requested to continue working from home all but two days per week, citing a worsening in her diagnosed anxiety as a result of wearing a mask when required to be in the office. Her employer denied the request, noting that the position required the plaintiff to work on-site. The court, in granting summary judgment for the hospital, held that her employer demonstrated that “(p)roviding radiology services requires a physical presence in the hospital. And providing radiology services requires the presence of the department’s leadership to ensure the department is functioning properly.” 2022 WL 4745259 (S.D. Ind., 2022) In reaching this result, the court stated, “Plaintiff may have been given leeway to work from home at the beginning of the pandemic, but the undisputed evidence reflects that being present on site was a necessary function of her position.” Id. The ruling has been appealed to the 7th Circuit.
The holding in Kinney, as well as those from jurisdictions outside Indiana, demonstrates that whether working from home is a “reasonable accommodation” continues to be a fact-specific inquiry that should be evaluated on a case-by-case basis. Therefore, it is incumbent upon employers to engage in the “interactive process” mandated by the ADA, keep abreast of the EEOC’s evolving guidance and consider whether in-person work is truly an essential function of the employee’s job performance — especially if that employee performed his or her tasks successfully from home during the early stages of the pandemic.•
Rebecca Loeffler, a partner based in Frost Brown Todd’s Indianapolis office, is a litigator who represents both private and public employers in state and federal courts as well as before arbitrators and administrative boards. Cameron Trachtman, a Frost Brown Todd attorney based in the Indianapolis office, is a litigator who handles regulatory and corporate matters, with extensive experience representing nonprofit organizations. Opinions expressed are those of the authors.