Labor & Employment Law Daily Remote work not reasonable accommodation for city accountant with ‘flesh-eating’ bacteria disease
Wednesday, February 6, 2019

Remote work not reasonable accommodation for city accountant with ‘flesh-eating’ bacteria disease

By Brandi O. Brown, J.D.

The appeals court rejected the worker’s arguments that remote work was a reasonable accommodation given that his medical restrictions did not require him to work from home.

Affirming the grant of summary judgment against the ADA and state-law disability bias claims of a municipal employee who underwent three surgeries after he contracted Fournier’s gangrenous necrotizing fasciitis—a rare, life-threatening disease—the Eighth Circuit found that the employer, which was not obligated to return the employee his previous position because he failed to return to work at the end of his FMLA leave, had offered the accommodation his physician had indicated was needed—a four-hour work day upon his return, for a specified period of time. His restrictions did not state he needed to work from home. The employer fired him only after negotiating with him for months about his return to work (Brunckhorst v. City of Oak Park Heights, February 4, 2019, Wollman, R.).

Bacterial disease. In April 2014 the employee, who had worked for the city for more than 15 years, contracted a rare, life-threatening disease that is commonly known as “flesh-eating” bacteria. He underwent multiple surgeries and spent many months in a health care facility. He was left with long-term injuries. During this period he had requested and was approved for FMLA leave, which he exhausted, and then took additional unpaid leave.

In September, the city administrator sent him an updated job description for his position and asked the employee to provide documentation from his physician about whether he was able to perform the essential functions. The response submitted by the employee was a letter from his doctor indicating that he could not return to work and needed extended leave. Additional requests for information yielded similar results, with return dates moved from November to December to January.

Position no longer needed. In the meantime, in November, the administrator informed the city council that the position held by the employee, the Senior Accountant position, was no longer needed, at least in part because the duties had been absorbed by other employees. Although the city council wanted to eliminate the position altogether, the administrator offered the employee the option of either accepting the severance package suggested by the council or taking another, lower-paying position. The employee complained that he was being discriminated against and obtained counsel.

Fired after failing to return. By late February, the employee still had not returned to work and the administrator sent a letter asking him to provide a request for reasonable accommodations he might need for the new job. He was told to return to work by April 1 or face discharge. The employee’s attorney responded, stating the employee should return to his original position, on a reduced schedule for 120 days, and that he be allowed to work from home for those days. However, the report from his physician restricted him only to four-hour work days with some physical limitations and did not limit him to working from home. Additional attempts to discuss the matter fell through and the employee was fired in late April.

The employee filed suit under the ADA and the Minnesota Human Rights Act and, ultimately, the district court granted the city’s motion for summary judgment. The employee appealed.

Remote work not reasonable or required. Although the employee contended that his employer failed to offer a reasonable accommodation and that he should have been returned to his original position, the appeals court was unpersuaded. It noted that the employee failed to return to work prior to the expiration of his FMLA leave and that there was no medical reason why he had to be returned to his old position rather than to the new one—both were “sedentary desk jobs.”

The court declined to follow EEOC Enforcement Guidance upon which the employee sought to rely for the argument that the employer was required to hold open his original position—noting that the document was not binding authority.

Moreover, the employee’s own testimony counted against him with regard to the accommodation of working from home. The employee had testified that it “would have been easier” to work from home, but that was a statement of preference. His medical restrictions did not indicate that he had to work from home, and his explanation for why—that he needed to be able to lie down because of episodic pain—came too late. He never informed the city of the need to do so until after he was fired.

The employee also failed to make a facial showing that he could have performed the job’s essential functions remotely. To the contrary, he admitted there were some functions he could not perform remotely and that in order to do the work remotely, other employees would have to do tasks for him. Further, he would be needed to cover for other staff, because of the small size of the organization, and to interact with the public.

Months of negotiation. Plus, the employee failed to present evidence showing that his position was eliminated because of his disability or that he was fired because of it. He was no longer entitled to come back to his position under the FMLA and it was permissible for the employer to offer reassignment to a position with lower pay because a position comparable to his old one was not available. And the employer fired the employee for refusing to return to work after months of negotiation, the court explained. Those negotiations also led the district court to correctly determine that no reasonable juror could conclude that the employer had failed to participate in good faith in the interactive process.

Retaliation claim. Finally, the retaliation claim was unsupported by any showing of causal connection. The employer continued to work with the employee even after he complained of discrimination and did not fire him until after he rejected proposed accommodations and repeatedly failed to return to work.

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