Remote Work Not A Required Accommodation, Fifth Circuit Holds

An employee who was denied telework and subsequently sued alleging disability discrimination, failure to accommodate and retaliation under the Americans with Disabilities Act (ADA) could not move forward on his claims because he was not a qualified individual under the statute, the Fifth Circuit has ruled.

In 2021, Albert Hayes worked as a contract system administrator at Fort Polk’s Army Network Enterprise Center through GStek, a contractor. Due to the COVID-19 pandemic, he was temporarily permitted to telework.

In February 2022, the Army and GStek transitioned away from telework and required Hayes to return to in-person work. Overstimulated by his return to the office, Hayes was diagnosed in May 2022 with Autism, Major Depressive Disorder and Social Anxiety Disorder. He was admitted to inpatient psychiatric care in August 2022.

Hayes later submitted a physician’s note and a reasonable accommodation request asking GStek to allow him to telework. Under the terms of GStek’s contract, Army officials had to approve the request.

The Army determined that it “would not be in the best interest of the organization to allow full-time teleworking,” and Hayes’ request was denied. GStek permitted Hayes to work from home two to three days per week. He then had a “mental breakdown” and took a medical leave of absence.

GStek terminated Hayes citing absenteeism and other concerns. He sued GStek and raised three ADA claims: failure to accommodate, discrimination and retaliation. GStek filed a motion for judgment on the pleadings, and the district court granted the motion.

Hayes appealed, but the Fifth Circuit affirmed.

In-person attendance was an essential function of Hayes’ job, the court said.

“The Army determined that allowing full-time teleworking was not in its best interests, and as an Army contractor, GStek had a business interest in honoring the Army’s conditions,” the court wrote. “Additionally, current incumbents working at GStek and providing contract services to the Army do not receive teleworking accommodations. Hayes’s supervisor expressed concern that allowing Hayes to telework would open the floodgates of employee requests to telework and would thereby potentially damage GStek’s contractual relationship with the Army.”

That in-person attendance was an essential function of Hayes’s job was unsurprising, the court added, and the COVID pandemic did not change the reality that in-person work is presumed to be an essential function of most jobs.

“[T]he fact that Hayes’s employer permitted him to telework while temporary COVID policies were in place does not transform the essential functions of his job,” the court said. “Because COVID did not change the essential requirements of his job and the ADA’s accommodation requirement ‘does not require an employer to relieve an employee of any essential functions of his or her job,’ GStek was not required to allow Hayes to telework.”

By Hayes’s own admission, he “needed to work from home” in order to perform the functions of his job.

“It was impossible for GStek to grant this accommodation request while also ensuring that the essential in-person functions of the job were being carried out,” the court explained. “Therefore, Hayes was not a qualified person for the job, even with GStek’s generous accommodation of allowing him to work from home two to three days per week.”

Those two to three days per week at home satisfied GStek’s statutory obligation to provide Hayes with a reasonable accommodation, the court added, and the fact that Hayes did not obtain his preferred accommodation was not a violation of the ADA.

As he was not a qualified individual for the job, Hayes failed to establish his prima facie case of discrimination; he was similarly unable to establish a prima facie case for retaliation.

The court held that Hayes’s inability to perform the essential functions of the job defeated his ability to prove causation as required for his retaliation claim..

“Without being a qualified individual, his request for accommodation was doomed, and that failed request cannot be the basis for a retaliation claim,” the court concluded, affirming dismissal.

To read the decision in Hayes v. GStek, Inc., click .

Why it matters: The Fifth Circuit’s decision provides support for employers that in-person attendance can be an essential function of the job and that telework is not automatically a reasonable accommodation, even in the context of a return to office policy post COVID.