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Court gives guidance about return to onsite work and ADA

By Mike O’Brien

In ADA Case, Tenth Circuit says onsite work may be essential

One of the most frequent questions that the writers of these updates receive is whether employers who moved to a remote workplace in response to the COVID pandemic may now recall employees to onsite work. Generally, we’ve advised employers that they are free to require onsite work, although they may need to make exceptions for employees with disabilities under the Americans with Disabilities Act (ADA) or provide leave to eligible employees under the Family & Medical Leave Act (FMLA).

On April 8, 2021, the United States Tenth Circuit Court of Appeals (the federal appellate court for the mountain west region), issued an important ADA decision about onsite work requirements in the case of Unrein v. PHC-Fort Morgan, Inc. dba Colorado Plains Medical Center. Although the case arose pre-pandemic, the court’s analysis may be helpful to employers who’ve required a return to onsite work and are considering case-by-case remote work exceptions under the ADA.

Joan Unrein worked as a Clinical Dietician for the Colorado Plains Medical Center. Ms. Unrein became legally blind and had difficulty commuting to work, relying on friends and family to drive her to work. Because she could not guarantee when a ride would be available, she requested a flexible onsite work schedule and some remote work. The Medical Center initially granted the accommodation request, but it had problems when Ms. Unrein was unable to set a predictable work schedule. As a result, the Medical Center ended the accommodation. Thereafter, Ms. Unrein asked to telecommute full-time. The Medical Center denied this request because her position required four hours of in-person face-to-face patient interactions per day. Ms. Unrein then took a multi-month leave of absence, before the Medical Center eventually terminated her employment. Ms. Unrein sued the Medical Center, alleging that it had failed to accommodate her disability under the ADA. The district court entered judgment in favor of the employer, and the Tenth Circuit affirmed that decision.

On appeal, the Tenth Circuit agreed with the Medical Center that predictable and regular onsite attendance was an essential function of her job. Employers are not required to excuse essential job functions under the ADA. On this point, the court instructed that “we will not second guess the employer’s judgment [with respect to essential job functions] when its description is job-related, uniformly enforced, and consistent with business necessity.” (emphasis added). Here, the Medical Center established that regular onsite attendance was “job-related, uniformly enforced, and consistent with business necessity.” Accordingly, the Tenth Circuit held that Ms. Unrein’s request to be excused from regular onsite attendance was unreasonable and not required by the ADA.

There is an important practice pointer if you recall employees to onsite work, and someone seeks continued telework as an ADA accommodation. In such cases, you may deny a request for continued telework if onsite work is “essential” to the employee’s job. Your documentation should show that onsite work is “job-related, uniformly applied, and consistent with business necessity.” Thus, you should document the business reasons why onsite work is needed and important. And you should be sure that you’ve not excused onsite work for others in the same job category, including non-disabled employees. Additionally, when you recall employees to onsite work, consider adding a disclaimer like this one: “In response to the global COVID pandemic, the Company allowed its employees to telework at the sacrifice of essential job duties that may only be performed onsite. The Company is pleased to return its employees to onsite work. We look forward to our employees resuming all of the essential functions of their jobs when they return to onsite work.”

In race discrimination case, Tenth Circuit says stray remark insufficient to show discrimination

In the recent Bacy v. Chickasaw Nation case, the Tenth Circuit Court of Appeals doubled down on the long-held rule that stray racist remarks aren’t enough to establish a hostile work environment claim. According to the court, a hostile work environment exists where there is “a steady barrage of opprobrious comments.” In other words, a racially hostile work environment is one that is “permeated with racially discriminatory intimidation, ridicule, and insult.” Based on this doctrine, the Tenth Circuit upheld the dismissal of a race discrimination claim in Bacy where a manager made a single insensitive comment to an African American employee about police shootings.

Does this mean our work to increase workplace sensitivity and decrease harassment been misguided or unnecessary? Of course not. Indeed, the Bacy case underscores the need for continued attention to workplace civility and understanding. According to the court’s opinion, Treva Bacy, an African American woman, was terminated after she yelled at her supervisor and directly disobeyed an instruction to hand in her badge and headset. Bacy believed the termination was racially motivated because her supervisor previously said (following the notorious shooting of a black motorist), “If the police ask me to throw my hands up, I would throw my hands up, because I’m not a drug dealer or a gang banger.” While the court doesn’t give any context for this statement, it is easy to see how the assumption that non-compliant African American motorists are all drug dealers or gang bangers failed to resonate with Bacy. We are also left to wonder whether the parties tried to smooth things over after the supervisor’s comment. The fact that Bacy’s employment ended in a yelling match with the supervisor may mean that the two never resolved their conflict. This unresolved conflict also meant that the employer got to participate in litigation for three years—both at the trial and appellate court levels, which was great for Chickasaw Nation’s lawyers but bad for the Chickasaw Nation. Of course, we hope there are very few workplaces that are, in the words of the court, “permeated with racially discriminatory intimidation, ridicule, and insult,” but there is likely room for greater understanding, grace, and improved communication in all of our places of work. Thoughtful training can help employers avoid liability, but it can do much more than that by making our work lives happier and more productive.


How do courts handle the distinction between alcoholism and alcohol-related misconduct?

n a recent case, the federal 10th Circuit Court of Appeals distinguished between “alcoholism” and “alcohol-related misconduct.” The court recognized that “the ADA and Rehabilitation Act recognize alcoholism as a disability.” However, the court also held that employers don’t have to “accept egregious behavior by an alcoholic employee when that same behavior, exhibited by a nondisabled employee, would require termination.” So, under the ADA (Americans with Disabilities Act), employers can still prohibit an employee from being under the influence of alcohol at the workplace and “hold an alcoholic employee to the same qualification standards for employment as other employees.” In addition, the ADA doesn’t protect alcoholics whose current use of alcohol “prevents them from performing the duties of the job or whose employment, by reason of such current alcohol abuse, would constitute a direct threat to property or the safety of others.” You can read the decision here.

CDC issues vaccine guidance

The CDC has provided new guidance on workplace vaccination programs. The CDC doesn’t take a firm stance on whether employers should require vaccines. Instead, it lists factors employers should consider in developing a vaccination program, such as: vaccine benefits (for employers and employees), vaccines locations (onsite or offsite), timing (employee prioritization and eligibility), and allowing time for vaccine confidence to grow. Click here to view the full webpage.

The American Rescue Plan Act

On March 11, 2021, President Joe Biden signed into law the $1.9 trillion American Rescue Plan Act of 2021 (ARPA). Much of the economic relief in ARPA is administered through the tax code in the form of direct payments (stimulus checks) and expanded child tax credits in 2021. Overall, approximately $850 billion (of which, about $410 billion is for stimulus checks) is directed to individuals while about $65 billion is directed to businesses. ARPA includes an update to PPP loans, restaurant revitalization grants, an extension of FFCRA tax credits, employee retention credits from the CARES Act, subsidies for COBRA premiums, federal unemployment insurance expansion, and limitations on excessive employee remuneration.











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