Private Duty

10th Circuit Decision May Affect Work-From-Home Requests After Pandemic Ends

As COVID-19 vaccinations increase and states ease pandemic-related restrictions, many employers are beginning to plan for employees’ to return to the office. But not all workers may want to return, and some might ask to work remotely because of ongoing concerns about the virus in light of underlying health conditions or simply a fear of becoming infected.

It remains to be seen how courts will address the issues under the Americans with Disabilities Act (ADA) and state law, but the U.S. 10th Circuit Court of Appeals (which covers Colorado employers) recently provided useful guidance in a case addressing a prepandemic accommodation issue.

Joan Unrein worked at the Colorado Plains Medical Center as a clinical dietitian. At some point, she became legally blind. The hospital accommodated her blindness at work with special magnifying equipment, but her transportation issues were more problematic.

Unrein, who lived about 60 miles from the hospital, couldn’t drive herself to work or secure a ride service or public transportation, so she had to rely on friends and family. As a result, her ability to get to and from work was inconsistent, leading her to request a flexible schedule.

The hospital accommodated Unrein’s request, but with limitations to ensure the flexible schedule didn’t adversely affect patient care or place undue burdens on other employees. After 15 months, the hospital concluded her efforts to be physically present at the facility on a regular, predictable schedule weren’t working. Her performance declined, as did patient satisfaction scores.

Consequently, the hospital ended Unrein’s flexible schedule arrangement. She then asked the employer to reinstate her request and later to telecommute full-time.

While the requests were pending, Unrein sought and the hospital approved a full-time medical leave (for issues unrelated to her blindness). After seven months, she was approved for long-term disability and Social Security benefits. At that point, the hospital terminated her employment.

Unrein’s Claims

Unrein sued the hospital, claiming it violated the ADA by failing to accommodate her. The Act generally requires employers to engage in the interactive process with, and provided reasonable accommodations to, disabled individuals, subject to limited exceptions. For example, an accommodation isn’t required if it poses an undue hardship on the employer.

In Unrein’s case, the analysis turned on whether physical presence at the hospital on a set, predictable schedule was an essential job function of the clinical dietitian position. Employers need not eliminate an essential job function because that isn’t considered a reasonable accommodation.

10th Circuit’s Ruling

Ultimately, the 10th Circuit agreed with the trial court that being at work on a predictable schedule was an essential job function. Employers bear the burden of proving certain job functions are essential. To do so, they must show the task or function is job-related, uniformly enforced, and consistent with business necessity.

Unrein’s duties involved close contact with patients. The hospital’s negative experience with her less predictable on-site schedule no doubt helped convince the court that being on-site on a set, predictable schedule was an essential job function.

The 10th Circuit also noted Unrein sought an accommodation because of her transportation barrier, but transportation to and from work isn’t an essential function or privilege of employment. Indeed, the court pointed out a nondisabled worker whose car broke down would be in no different position than Unrein, and the individual would have no greater rights to a flexible schedule. Unrein v. PHC-Fort Morgan, Inc., — F.3d —, 2021 U.S. App. LEXIS 10145 (10th Cir., Apr. 8, 2021).

Lessons Learned

Unrein’s case reaffirms that when you work with employees and attempt to accommodate them, you are often better able to defend against claims than if you summarily deny a request. The 10th Circuit also reaffirmed you don’t have to eliminate essential job functions, which can include being physically present at work on a set, predictable schedule.

Still, the 10th Circuit’s ruling isn’t a blanket authorization for you to mandate all employees return to the office, without exception, when the pandemic ends. If an employee asks to work remotely and suggests it’s because of a medical issue or impairment, you should engage in the interactive process and determine whether physical presence at the office is essential. That analysis will almost certainly require your organization to critically review any impacts (positive and negative) of relying on a remote workforce since the pandemic began.

Mark Wiletsky is a partner with Holland & Hart LLP, practicing in the firm’s Boulder, Colorado, office. He may be contacted