The U.S. 5th Circuit Court of Appeals (whose rulings cover Texas, Louisiana, and Mississippi) shocked employers out of the summer doldrums with a new opinion issued on June 28, 2023. In a 2-1 vote, it declared that remote work or commuter assistance for an employee in the Houston area can be a reasonable accommodation under the Americans with Disabilities Act (ADA).
The Mechanics of ADA Reasonable Accommodations
Ever hear of peripheral neuropathy? It’s a medical condition that affects your extremities and impairs your mobility. It often flares up in the mornings and subsides as the day progresses. U.S. Postal Service (USPS) employee Dionne Montague suffers from the condition. Let’s do a Q and A to work through the 5th Circuit’s decision saying that she gets to take her case to a jury.
Question: Does the employee have a disability?
Answer: Here, yes. She suffers from a condition that impairs her mobility.
Question: Does the employer know the nature of how her disability affects her?
Answer: Yes, Montague told them because of her disability she’s unable to drive to work in the mornings. This is a key question because an employer can only accommodate the known limitations flowing from an impairment. Merely knowing the name of the condition doesn’t do the trick. Why? Medical conditions affect different people in different ways.
To presume otherwise is to make presumptions about the effects of a condition, which is contrary to the ADA’s requirement of an individualized analysis. So, no comments such as “My uncle Leo had that condition, and it wasn’t that bad. He was able to do a lot of things that we thought he wouldn’t be able to do.”
Question: At this point, does the employer need to determine a reasonable accommodation to assist Montague?
Answer: Not quite yet. No accommodation needs to be discussed if the accommodation “fundamentally alters the nature of the service, program, or activity…and a job is fundamentally altered if an essential function is removed.”
Montague’s job? Communications Program Specialist—that is, a public relations employee. The USPS argued she was required to travel in the greater Houston area.
Now, two questions must be asked. What does the written job description say about travel? Here, not a word about travel or the ability to drive. Next question: Does the job, in practice, require driving or travel? Her supervisor noted that the job “sometimes” involved travel in the greater Houston area. This means that is up to a jury to determine whether travel/driving is “essential.”
Question: If a reasonable accommodation is discussed, what form must it take?
Answer: The law states an accommodation doesn’t have to be one that is the preferred choice of an employee. Here, the Postal Service suggested either (a) her husband drive her to work in the mornings; (b) that she takes a taxi or an Uber to work; or (c) a combination of (a) and (b).
The 5th Circuit said neither is reasonable. Montague’s husband needed to leave for his own job in the mornings, and taking a taxi or Uber would be too expensive. Based on the reasons discussed above, the appeals court sent the case back for a trial by jury. Montague v. United States Postal Service, (5th Cir., June 28, 2023).
Bottom Line
The majority opinion summed it all up:
“Our precedent recognizes the general consensus among courts…that regular work attendance is an essential function of most jobs. But a jury could conclude that the accommodation sought by Montague is consistent with that principle. She sought to work from home in the morning—and at her worksite every afternoon. Whether that is a reasonable request is for a fact-finder [i.e., a jury] to decide, considering the evidence [so far developed]…”
I like this summary. Yes, in most cases attendance is an essential function of the job, but not in all cases. The ADA, as I stated, is founded on the idea that employees (for the most part) must be viewed as individuals and treated accordingly. This case is a perfect illustration. You can play the odds, or you can play it smart.
Michael P. Maslanka is a professor at the UNT-Dallas College of Law. You can reach him at michael.maslanka@unt-dallas.edu.