Indefinite Remote Work Isn't a Reasonable Accommodation When In-Office Presence Is Essential Job Function, Federal Court Rules
Rogers v. Unified Government of Wyandotte County/Kansas City, Kansas
On October 17, 2024, the U.S. District Court for the District of Kansas entered summary judgment in favor of the Unified Government of Wyandotte County/Kansas City, Kansas, as representative of the Kansas City Board of Public Utilities (BPU) and against a former employee, Jill Ann Rogers, on her claims for harassment, discrimination, and failure to accommodate under the Americans with Disabilities Act (ADA).
Quick Hits
• The U.S. District Court for the District of Kansas entered summary judgment for an employer on an employee’s ADA failure-to-accommodate claim because the employee’s request for indefinite remote work was not facially reasonable where the employer established in-office presence was an essential job function and the accommodation would not enable the employee to work in-office immediately or in the near future.
• An employer’s prior agreement to allow temporary periods of remote work as an accommodation is not determinative of whether indefinite remote work is a reasonable accommodation.
• An employer’s failure to include in-office presence in a job description or handbook policy is not dispositive of whether physical presence in the workplace is an essential job function, and courts may look to other factors to determine essential job duties, such as past instances of remote work and the essential nature of the goods and services provided by the employer.
In Rogers v. Unified Government of Wyandotte County/Kansas City, Kansas, the district court entered judgment as a matter of law for BPU on all counts of Rogers’s ADA claims for harassment, discrimination, and failure to accommodate. The court concluded Rogers’s request for indefinite remote work was not reasonable because the accommodation would not allow her to perform the essential job functions, which included physical presence in the office. Moreover, Rogers failed to establish a prima facie case for BPU’s alleged failure to accommodate her mobility issues at its facility because BPU did not refuse to provide the requested accommodations but instead delayed addressing maintenance issues for accommodations already in place. Finally, the court entered judgment for BPU on the remaining claims because Rogers failed to exhaust her administrative remedies on her harassment claim and failed to establish her disability was a determining factor in BPU’s decision not to promote her.
Background
BPU provides water and electricity to Wyandotte County, Kansas, which includes metropolitan Kansas City, Kansas. Rogers worked in BPU’s purchasing department from 2003 until June 2021. In 2016, Rogers was diagnosed with multiple sclerosis (MS), which caused significant mobility issues. To address her difficulties with access to BPU’s facilities, Rogers requested BPU to install automatic doors and provide reserved parking; BPU complied with her requests, but the doors were inoperative occasionally, and the assigned parking was moved five times for various reasons. BPU also provided Rogers an electric scooter for her use at work and assigned an assistant to help her transition between the scooter and her vehicle.
When BPU’s purchasing director retired in 2017, BPU named Rogers the acting director until a replacement was found. BPU’s search for a director was delayed due to the COVID-19 pandemic. When BPU began its search for a new director in November 2020, Rogers applied for the job.
During the pandemic, BPU allowed some employees to work from home for three weeks but then required all personnel to return to the office due to the essential nature of its services. BPU also permitted Rogers to work from home for several weeks to avoid COVID-19 exposure during her biannual chemotherapy treatments. In February 2021, while Rogers was working remotely during a chemotherapy treatment, she learned BPU chose another candidate for the director position and BPU expected her to help train the new director. Thereafter, Rogers provided a physician’s note stating her physician advised her to stay home during and after her treatment, so she worked the entire month of February 2021 from home. After BPU inquired when Rogers would return to work, she advised BPU her physician would not clear her to return to work in the office and she requested remote work for an indefinite time. Rogers’s supervisor told her BPU does not allow remote work for an indefinite time, but BPU offered Rogers twelve weeks of leave under the Family and Medical Leave Act (FMLA) and long-term disability (LTD). BPU also offered to hold open Rogers’s position for two years.
Rogers took twelve weeks of FMLA leave and then went on long-term disability. While on LTD, she filed a charge with the Kansas Human Rights Commission (KHRC) and U.S. Equal Employment Opportunity Commission (EEOC), alleging BPU failed to accommodate her disability and discriminated against her by refusing to hire her for the director role. Thereafter, Rogers filed a federal action alleging harassment, discrimination, and failure to accommodate under the ADA. The district court granted summary judgment in favor of BPU as to all claims, finding Rogers failed to exhaust her harassment claim, failed to establish a prima facie case for failure to accommodate arising from lack of access to the building, failed to establish indefinite remote work was a reasonable accommodation, and failed to show her disability was a motivating factor in BPU’s decision to hire another candidate for the director position.
The District Court’s Decision
Initially, the court dismissed the harassment claim because Rogers’s charge did not contain allegations related to harassment. The court also entered judgment as a matter of law on Rogers’s ADA discrimination claim because she failed to establish her disability was a motivating factor in BPU’s decision not to hire her for the director position, finding she must come forward with “facts showing an ‘overwhelming’ disparity in qualifications” to meet that burden.
Rogers premised her remaining claims for failure to accommodate under the ADA on BPU’s refusal to provide accommodations for access throughout the building (such as automatic doors, parking, and a scooter) and refusal to allow her indefinite remote work. The court entered judgment as a matter of law in favor of BPU on Rogers’s accommodation claims based on building access because BPU had not refused to provide the requested accommodations, but instead, maintenance issues resulted in delays in the availability of accommodations already in place. The court concluded that a prima facie case for failure to accommodate requires a showing the employer refused the requested accommodation, but Rogers had not established that BPU refused to provide any of the accommodations she requested.
The court then turned to whether Rogers’s request to work from home indefinitely was a facially reasonable accommodation under the ADA, meaning one that would allow an employee to perform the essential job functions immediately or in the near future. BPU claimed in-office presence was an essential job function, but Rogers disputed physical presence was a job requirement because she had worked remotely in the past.
Although Rogers’s job description did not list in-office presence as an essential job function, the court determined job descriptions are not dispositive on the issue. BPU also did not have a written policy prohibiting remote work, but BPU had never allowed employees to work from home (other than for three weeks during COVID-19 or as a temporary accommodation). BPU requires all employees work in-office because it provides critical infrastructure and services to Wyandotte County, Kansas. Following the Tenth Circuit and other circuits, the court concluded “physical presence in the workplace is an essential function of most jobs.” The court declined to second-guess BPU’s judgment as to what was an essential function of Rogers’s job.
The court held that Rogers has the burden to prove her requested accommodation is reasonable, meaning it would allow her to perform the essential functions of the job. The court distinguished a temporary request for remote work from her request for remote work for an indefinite time. The court noted that following a temporary remote work assignment, Rogers would ultimately return to work in the office. Whereas Rogers’s request for indefinite remote work would not allow her to return to work in the workplace either presently or in the near future and thus it was facially unreasonable. The court entered judgment as a matter of law for BPU because Rogers failed to establish her request for indefinite remote work was facially reasonable, which is an essential element of any failure-to-accommodate claim under the ADA.
Conclusion
The district court’s decision upholds that remote work for an indefinite time is not a reasonable accommodation where in-office presence is an essential function of the job because a reasonable accommodation must allow the employee to perform the essential job functions immediately or in the near future.
When assessing the reasonableness of a request for indefinite remote work, the critical question is whether physical presence in the office is an essential job function. Written policies and job descriptions may support an employer’s policy prohibiting remote work but an employer’s failure to address in-office presence in a job description is not dispositive. Determining essential job duties is a fact-specific inquiry that may include consideration of past instances of allowing other employees to work remotely, the nature of the goods and services provided by the business, and whether the employee can perform the job from a remote location.