The Future of Work from Home Accommodations under the Americans with Disabilities Act
By Jonathan R. Ksiazek
With technological advances and modern workplaces, working from home is becoming a more common occurrence. According to the U.S. Census, in 2017 approximately 8 million people, or 5.2% of the workforce, worked from home. A recent case from the Seventh Circuit Court of Appeals highlights the challenges that employers and employees face when an employee asks to work from home as an accommodation under the Americans with Disabilities Act (“ADA”).
On June 26, 2019, the Seventh Circuit decided Bilinsky v. American Airlines, Inc., No. 18-3107. Bilinsky worked for American Airlines for over 20 years without issue. Her most recent position was as a communications specialist in the Flight Service department based in Dallas. In the late 1990s, Bilinsky was diagnosed with multiple sclerosis. After the diagnosis, American allowed Bilinsky to work from her home in Chicago as an accommodation under the ADA. Bilinsky requested to work from her home in Chicago, rather than at American’s corporate headquarters in Dallas, because hot weather aggravated her medical condition.
In 2013, American merged with US Airways. The merger required American to integrate the operations of both airlines. As part of the integration, in 2014 a Vice President at American unilaterally decided that he would require all employees to be physically present at American’s Dallas headquarters. Upon learning of the change in policy, Bilinsky emphasized to American that her medical condition required her to work from home and that relocating full-time to Dallas was not an option.
In 2014, American denied Bilinsky’s request to be allowed to continue her work from home arrangement. The parties then attempted to find alternative accommodations. During the process of discussing potential alternative accommodations, Bilinsky applied for a technical writer position located in Dallas. While the technical writer position was based in Dallas, American had allowed the previous technical writer to work from home. Due to the same policy shift requiring employees to be physically present in the Dallas office, American did not hire Bilinksy for the technical writer position.
Bilinsky continued to work from home in 2014 and into 2015, with no complaints from American. The only work event that she was unable to attend due to her medical condition was a leadership conference in early 2015. Nevertheless, in March 2015 American told Bilinsky that she had to complete her relocation to Dallas or resign. On May 1, 2015 American terminated Bilinsky’s employment.
American did not have a written job description for Bilinsky’s position. Thus, the change in Bilinsky’s job duties occurred solely from a change in her boss’s preference of not allowing work from home arrangements. American contended that after the 2013 merger, Bilinsky’s job functions changed over time such that she could no longer perform her duties from home. According to American, after 2013 Bilinsky’s position required more team-oriented activities involving frequent face-to-face meetings with team members on short notice.
The Seventh Circuit upheld the district court’s determination that Bilinsky was not a “qualified individual” under the ADA because she could not be physically present in Dallas on a full-time basis. Under the ADA, a “qualified individual” is someone who “can perform the essential functions of the employment position.”42 U.S.C. §1211(8). The ADA directs that courts give “consideration…to the employer’s judgment as to what functions of a job are essential.” Id. The EEOC defines “essential functions” as “the fundamental job duties of the employment position.” 29 C.F.R. §1630.2(n)(1). Courts typically examine the employer’s judgment, written job descriptions, the amount of time spent on the function, and the experience of those who previously held or currently hold the position.
One important factor the court noted was that after the US Airways merger multiple American employees, including Bilinksy, had their positions slowly change over time to require more face-to-face responsibilities. While the timing of Bilinsky’s changes in duties was murky and American never wrote a new job description to update the new circumstances of Bilinsky’s employment, the Court held that “the fact that American transitioned the department to new responsibilities slowly rather than all at once does not mean that the job’s essential functions didn’t change at some point after the merger.” Based on this rationale, the court found that there was no genuine issue of material fact and upheld the district court’s granting of summary judgment in favor of American.
There are several lessons for employers and employees in this decision. From the employer perspective, American faced legal jeopardy because it failed to properly document the changes in Bilinsky’s position over time. It is important for employers to update job descriptions on a regular basis, and to include all essential functions in the job description, in order to avoid any confusion regarding the job duties of a position.
Another key factor was that American’s policy restricting working from home was enacted for all positions based out of its home office in Dallas. When allowing employees to work from home, it is important to make sure that your company’s policy is enacted in a uniform manner without regard to any protected category such as disability, race or gender. It is also important to note that in its 1999 Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (revised 10/17/02), EEOC said that allowing an individual with a disability to work at home may be a form of reasonable accommodation under the ADA. Thus, each request to work from home as an ADA accommodation should be analyzed carefully on its own merits.
From an employee perspective, this is a challenging decision. Bilinsky did nothing wrong, performed well in her position, and yet was subject to a change in her employer’s preferences after being accommodated for over 15 years. She attempted to work with her employer to find another position that allowed her to work from home but was informed that the policy preventing working from home was across the board. In short, the court found that there was no way for her to show that she could meet the essential functions of her position because her medical condition prevented her from working in Dallas. This case shows the risks of litigation for plaintiffs with even the most sympathetic facts.
From both perspectives, this is an issue that is sure to be raised in future cases. Bilinsky reminds us to be mindful of our changing world and the factual specifics of each case, warning that, “Litigants (and courts) in ADA cases would do well to assess what’s reasonable under the [ADA] under current technological capabilities, not what was possible years ago.”