This subject was brought to my attention by a recent Washington Post article, It begins, as articles like this often do, by focusing on one person:
Zacchery Belval, a designer from Connecticut who has congenital heart disease and severe anxiety, was fired after he refused to return to the office. Despite submitting several doctor’s notices about his medical need to work from home, his employer denied his request, citing in-person job duties. Now, he’s suing the company in U.S. District Court in Connecticut.
“They just said either you come back … or you’re fired,” Belval said. “It was literally screaming matches with management every day saying, ‘Hey, this is about health,’ and management going, ‘We don’t care.’” . . . .
Belval’s attorney, Peter Goselin, said he’s seeing a rise in workers filing lawsuits against their employers to work remotely. Belval’s lawsuit boils down to whether working from the office is considered essential to his job and whether remote work is a “reasonable” accommodation, he said.
Two circuit courts have ruled that remote work could be considered reasonable, Goselin said. A federal appeals court made that ruling in a case in which Dionne Montague, a public relations worker who has a nerve condition, requested that the U.S. Postal Service allow her to work some mornings from home and go to the office in the afternoon. And another federal appeals court came to a similar conclusion after Joseph Mobley, a customer service worker diagnosed with multiple sclerosis, asked St. Luke’s Health System to work from home when during flare-ups.
I was able to locate the two cases cited by attorney Goselin: Montague v. United States Postal Service (5th Cir., No. 22-20113, 6/28/2023) and Mobley v. St. Luke’s Health System (8th Cir., No. 21-2417, 11/16/2022). In both cases, the plaintiffs appealed the district court’s grant of summary judgment. The Montague opinion begins with a concise statement of the general issue:
Many federal civil rights laws prohibit discrimination of various kinds. But for certain classifications – namely, religion and disability – Congress requires more. Employers must affirmatively provide “reasonable accommodations” to people of faith and the disabled. [Citations to the relevant statutes omitted.] This requirement no doubt imposes costs on employers. But it’s a legislative policy judgment that we are duty-bound to implement. . . .
It’s often said that 90% of life is showing up. But the right number no doubt varies from job to job. It may be reasonable to work part of the day at home for some jobs – but not for others. The correct answer turns on the nature of the job and the facts of the case. In this case, we conclude that genuine fact disputes preclude the grant of summary judgment to the employer.
The plaintiff, a public relations employee for the U.S. Postal Service, has peripheral neuropathy, which often flares in the morning. The Postal Service denied her request to work from home in the morning when necessary and report to the office each afternoon. She sued for failure to accommodate in violation of the Rehabilitation Act, a law that I confess I had never heard of. It “imposes upon public entities” – expressly including the Postal Service – “an affirmative obligation to make reasonable accommodations for disabled individuals.” (Emphasis added.) The district court found that driving and travel were essential to the plaintiff’s job and that her requested accommodation (working from home in the morning as needed) was unreasonable.
The Fifth Circuit identified four factual issues precluding summary judgment:
To begin with, Montague raises a genuine fact question about whether travel was essential. She argues that travel could not have been an essential function of her job because her time spent on travel in the past was minimal. . . . The Postal Service’s own documents indicate that Montague traveled just twice in 2013, twice in 2014, and three times in 2015. . . . [Furthermore], Montague’s written job description does not mention travel as an essential part of her job. . . .
Montague also presents a genuine fact dispute over whether her job requires her to be in the office in the mornings as well as the afternoons. She does so by invoking the experience of two of her colleagues: fellow Communication Programs Specialists McKinney Boyd and Stephen Seewoester. . . . Boyd came into the office only four days a week, and worked the remaining day at home. Similarly, Seewoester “[f]or 19+ years . . . conducted [his] daily duties remotely” at all times, not just in the mornings. As his affidavit explained, “[u]sing electronic communication . . . [he] was able to successfully complete all the requirements of [his] position.” . . .
[T]he reasonableness of the Postal Service’s suggested alternatives also presents a fact dispute under this summary judgment record. The Postal Service suggested two potential alternatives: her husband could drive her to the office, or she could hire a taxi to take her to the office each day. But Montague . . . explained that her husband could not drive her every morning because his own commute required him to leave hours before Montague’s job began each morning. . . . She also noted that she could not afford to take a taxi every day, and that the Postal Service never offered to reimburse her . . . . [A] jury could conclude that the alternatives suggested by the Postal Service were not reasonable.
Montague also raises a factual question as to whether the Postal Service offered its alternative accommodations in good faith. . . . According to Montague, members of the Postal Service reasonable accommodation committee “began mocking [her] and used derogatory statements, showing true contempt toward [her].” A jury could choose to credit Montague’s testimony and accept her argument that the Postal Service demonstrated “an unwillingness to conduct the interactive and reasonable accommodation process in good faith.” (Citation omitted.)
In Mobley v. St. Luke’s Health System, the Eighth Circuit engaged in a similarly meticulous analysis, demonstrating that “Mobley . . . has raised a genuine dispute of material fact as to whether he could perform the essential job functions with a reasonable accommodation.” Unlike in Montague, however, the court affirmed the grant of summary judgment because the employer’s good-faith engagement in the interactive process was undisputed:
[F]or a failure-to-accommodate claim to survive summary judgment, an employee must do more than establish a prima facie case – he must also show that his employer failed to engage in the interactive process in good faith. . . . We agree with the district court that the record does not demonstrate a material dispute on this element, and that summary judgment was appropriate. The record demonstrates several steps that St. Luke’s took in response to Mobley’s request for accommodation.
Suffice to say, the court’s analysis of those “several steps” was as meticulous and convincing as its analysis of Mobley’s evidence that he could perform the essential functions of his job if he were allowed to work from home when his MS flared. Basically, his employer regularly granted his requests to work at home on a case-by-case basis, with only one exception (for which he used paid time off) – it simply “would not approve a blanket request to work from home during flare-ups.”
Clearly, these cases are highly fact specific. Perhaps that’s why a footnote on the first page of the Montague opinion states, “This opinion is not designated for publication. See 5th Cir. R. 47.5.” But the Eighth Circuit published its opinion, and I think the Fifth Circuit made a mistake here. This is new legal ground, and every precedent is important. As the above-cited Washington Post article reports,
Return to office “is the issue that just doesn’t seem to go away,” said Dan Kaplan, a senior client partner with Korn Ferry’s chief human resource officer practice. The landscape remains in flux, Kaplan said, in part because some companies have struggled to configure office policies that account for the burden on parents, caregivers, the immunocompromised and others who may be taxed by mandates.
Since the mandates began, employees have raised a fuss through public outcry, petitions calling for policy changes and other internal pushback. Now, “litigation seems to be their last resort,” Kaplan said.
I think this is an interesting and important development, and I will keep my eye out for new reported cases involving back-to-office mandates.
