The COVID-19 pandemic opened the floodgates for requests to work remotely as a disability or pregnancy accommodation under state and federal law. Many employers have been unsure how to handle such requests, and there hasn’t been much guidance from the courts on the topic. But that’s changing. Here’s what one Illinois appellate court has to say on the topic, and it might not be what you were expecting.
Baby Talk
Lara Stachler worked as a speech-language pathologist with the Chicago Public Schools (CPS). In March 2020, the COVID-19 pandemic forced the schools to move to remote instruction. Stachler was pregnant at the time and worked remotely for the duration of the school year. She gave birth to her daughter in summer 2020 and was on maternity leave when the following school year began. When her maternity leave ended, the schools had returned to in-person classes.
Upon returning to work, Stachler made a number of requests for accommodations related to her childbirth. She asked for flexible work hours to accommodate the breaks she needed to express milk and permission to work remotely whenever her students were being taught remotely. CPS didn’t respond to those requests.
A few weeks later, Stachler requested an accommodation for full-time remote work so she could take breaks to express milk. CPS denied this request. She then sued the Board of Education for Chicago Public Schools in Illinois state court, alleging it violated the Illinois Human Rights Act when it denied her request to work remotely.
Labor Law
The Illinois Human Rights Act requires employers to provide reasonable accommodations for an employee’s pregnancy and childbirth, as well as medical or common conditions related to pregnancy and childbirth. Lactation is a “common condition” under the Act that employers must try to accommodate. The Act requires employers to engage in a timely, good-faith, and meaningful exchange to determine effective reasonable accommodations that would enable the employee to perform the essential functions of the position.
Stachler argued that full-time telework was a reasonable accommodation that would allow her to express milk. The board argued that in-person attendance was an essential function of the position, so her request wasn’t reasonable because it wouldn’t allow her to fulfill her duties.
The trial court agreed with the board and dismissed Stachler’s claim. She appealed that decision to an Illinois appellate court.
Out of the Mouths of Babes
The Illinois appellate court also agreed with the board, which argued regular attendance was an essential job function. It “requires its faculty and staff who serve students to work the hours posted as the regular school date at their schools.” The board noted that its written rules provide that an “essential function of most jobs includes the requirement that the employee work on-site in the workplace.” The appellate court stated an accommodation is unreasonable if it prevents an employee from performing the essential functions of the position.
Interestingly, Stachler didn’t try to refute that in-person work was an essential function of her position. Instead, she argued the board should have accepted her accommodation even though she wouldn’t have been able to perform all of her essential functions. The appellate court rejected her argument as nonsensical. It also noted she was supposed to rotate between three schools and have regular meetings with special education teachers, which made remote work impractical and not reasonable.
Lastly, Stachler argued the board had demonstrated that remote work was a reasonable accommodation because it allowed telework at times for some employees. The appellate court reasoned that accommodations made for other employees were persuasive only if those employees were similarly situated.
There was no evidence of a remote work accommodation provided to an employee who was similarly situated with Stachler, so this argument failed. Case dismissed. Stachler v. Bd. of Ed. of City of Chicago, 2023 IL App (1st) 221092.
Problem Child
Requests for remote work as an accommodation have become a challenge for many employers. Employers worry they can’t deny such requests because they allowed other employees in different roles to work remotely or because they allowed remote work during the pandemic.
The appellate court made it clear that remote work isn’t always a reasonable accommodation, and it upheld a useful strategy to assess such requests. The first step is to determine what the essential functions of the position are. If in-person work is essential to the position, then it’s important to include that language in the job description.
Another important step is to assess whether other employees in similar roles have been allowed to work remotely. If so, it may be difficult to show the accommodation isn’t reasonable.
Kelly Smith-Haley is an attorney with Fox, Swibel, Levin & Carroll, LLP, in Chicago and can be reached at ksmithhaley@foxswibel.com.