There’s no denying that the technological age is advancing at a rapid pace. We can buy groceries without entering the store, watch movies without entering the theater, and take our pick from thousands of books without ever entering the library. And the COVID-19 pandemic revealed that employees can perform their jobs without ever entering the workplace, right? Well, not quite. The Fort Worth Court of Appeals’ and Fifth Circuit’s recent opinions reveal that the digital age isn’t progressing as rapidly as one might think—at least, not when it comes to one’s essential job functions.

In University of Texas at Arlington v. Esimai, a professor who had previously taught only in-person courses taught remotely during the COVID-19 pandemic. The university granted the employee’s two subsequent requests to continue teaching online through May 2022 due to the unique nature of the pandemic. The employee then made a third request, asking to teach remotely indefinitely due to various disabilities that impacted her legs, her cardiac conditions, and immunocompromised status. The university determined that teaching in-person was an essential function of the professor’s position and offered to allow her to sit while standing or take frequent breaks to accommodate her condition but denied her request to teach remotely. The professor refused any accommodation other than full-time remote work and sued the university under state law for disability discrimination and failure to accommodate.

The Fort Worth Court of Appeals explained that to state a failure-to-accommodate or disability discrimination claim the employee must show, among other things, that they could perform the essential functions of their position with reasonable accommodations. The court explained that many courts have historically held that “being physically present at the workplace is an essential function of most jobs” and that “[t]his is especially true when the position is interactive” such as with teaching. The court cited guidance from the EEOC explaining that “[t]he fact that an employer temporarily excused performance of one or more essential functions” during the pandemic “or otherwise chose to permit telework, does not mean that the employer permanently changed a job’s essential functions, that telework is always a feasible accommodation, or that it does not pose an undue hardship.”

In Esimai, the court explained that for the first 20 years of the professor’s teaching career, she taught solely in-person and the only reason for her move to remote learning was the pandemic. The Fort Worth Court of Appeals observed that “[w]hen a university  offers fully in-person classroom instruction, having the teacher attend in person bears more than a marginal relationship to the job at issue.” Additionally, the court explained that allowing fully remote instruction for an in-classroom model would “fundamentally alter the job.” The court concluded that in-person instruction was an essential function of the professor’s job and that her brief, pandemic-induced stint with online instruction did not permanently change that. The professor’s argument that she that she technically could perform her job duties remotely as demonstrated during the pandemic was unavailing. What mattered was the that full-time, in-person instruction remained an essential function of her job, and she claimed she was no longer capable of teaching that way. Because she could not perform the essential functions of her job, the Fort Worth Court of Appeals denied her claims.

Likewise, in Hayes v. GStek, Incorporated, an employee of an Army contractor was permitted to work remotely during the COVID-19 pandemic. After the contractor and the Army transitioned away from remote work in early 2022, the employee was overstimulated by his return to the office and diagnosed with Autism, Major Depressive Disorder, and Social Anxiety Disorder. Though the Army determined that it was not in the organization’s best interest to grant the employee’s request that he be accommodated through full-time telework, the contractor allowed the employee to work remotely two to three days per week. The employee, however, experienced another mental breakdown and communicated that to do his job, he needed to work from home. After the contractor fired the employee, he sued in district court, bringing failure-to-accommodate, discrimination, and retaliation claims under the ADA.

As the Fort Worth Court of Appeals had held mere months earlier, the Fifth Circuit explained that in-person attendance is an essential job function of most jobs and the pandemic’s inducement of temporary telework conditions did not permanently alter this fact. Additionally, the Fifth Circuit explained that an employer’s ability to supervise an employee is a “factor in determining whether a work-at-home accommodation is reasonable.” The court noted that supervision is much harder to do remotely, especially when the employee never comes into the office. In Hayes, there were several instances in which the employee was unable to communicate effectively with his supervisor while working remotely. The court denied the employee’s claims, concluding that full-time telework was not a reasonable accommodation in this case and that, by the employee’s own admission, he could not perform the essential functions of his job. Moreover, the court held that the contractor had generously offered the reasonable accommodation of remote work two to three days per week.

In sum, while the technological age is marching ahead, employers still have a right to require employees to march to the office on Monday morning—even if they technically could or formerly did perform their duties remotely during the pandemic. Because in-person attendance is an essential function of most jobs, full-time remote work is often not a reasonable accommodation. Employers should, however, consider whether their particular instructional formats would permit temporary or part-time remote work as a reasonable accommodation on a case-by-case basis.

If you have any questions about the Esimai or Hayes decisions, essential job functions, or reasonable accommodations, please contact Stephanie Hamm at shamm@thompsonhorton.com, Kaitlyn Porter at kporter@thompsonhorton.com, or any member of Thompson & Horton’s litigation team.