It may be hard for employers to proclaim that being physically present in the office is an "essential function" of the job when the job has been successfully performed for two years from home. A recent decision by the U.S. District Court for the Eastern District of Pennsylvania in Costa v. Genesis Administration Services, No. 20-1851, 2022 US Dist. LEXIS 60372 (E.D. Pa. Mar. 30, 2022), although involving pre-pandemic circumstances, illustrates perfectly the challenges employers will face when an employee seeks to work from home as an ADA accommodation.

IT employee seeks to work from home (WFH)

Regina Costa worked in Genesis' "center support" group providing information technology services to the company, which operates long-term care facilities across the country. Costa began working for the company in 2005, but began working remotely in 2014. In 2017, Genesis implemented a policy that required Costa to work in the office one day per week in order to attend in-person training and development events.

Costa pushed back on the in-office requirement, complaining that she had childcare responsibilities that prevented her from working in the office. Genesis rejected this as a valid basis for a policy exemption. Costa then offered that she felt that she had been bullied at work and that her working from home was an effort to avoid the offending colleagues. Genesis, however, determined that the individuals about whom Costa complained were no longer working for the company so, again, she was directed to report to work.

'Disability' as basis for exclusive home work

The third time was the charm for Costa, who then told Genesis that she had an anxiety disorder that required her to work from home.  Upon receiving this information, Genesis sent Costa material from the EEOC explaining her obligations and the interactive process. Costa subsequently produced a note from a physician stating that she suffered from "anxiety with panic attacks." Unsure exactly what this meant or how it impacted Costa's work, Genesis responded to the physician directly (as approved by Costa) asking for additional information "about the duration and frequency of the disability, the limitations this disability imposes on Costa's major life activities and what accommodations would be necessary." The physician, however, refused to provide any additional information.

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Genesis then went back to Costa, who said that only her physician could answer the company's questions. In the meantime, Costa continued to work exclusively from home. The company, without additional information, proposed that Costa come to the workplace but perform her duties in a quiet space away from other employees. But Costa refused this proposed accommodation, questioning how this served the company's purpose if the reason for in-person attendance was to attend training and development sessions.

Termination ensues

After two months of back and forth, Genesis terminated Costa's employment. During the ensuing litigation, it proffered that her termination was for failing to attend the company's training program. Further, Genesis brought forward evidence that it had provided office-work exemptions where the requesting employees had provided more robust information substantiating their disability-related limitations.

Costa brought suit claiming that her termination violated the ADA and the Pennsylvania Human Relations Act, that she had been harassed and retaliated against and that Genesis had failed to reasonably accommodate her disability.

Although noting that it had "reservations" about the "precise nature" of Costa's disability, the court found that Costa had created a genuine issue of fact on the issue, which was integral to establishing a prima facie case under both statutes. But her discriminatory termination claim failed because the court found that "not only was [Costa] unable to comply with the training policy, but she appeared unwilling to come to work altogether."

Costa's harassment and retaliation claims were also quickly dismissed. There was no "temporal proximity" in order to support retaliation because Genesis terminated Costa six weeks after her initial accommodation request. While Costa had spoken to the EEOC before her termination, but there was no evidence that company considered the same in its termination decision.

Viable 'failure to accommodate' claim

The court found, however, that Costa's claim that she had been denied a reasonable accommodation was viable—summary judgment was denied. It is unclear, however, what exactly Genesis failed to do, since the court acknowledged that Costa was only terminated after she failed to provide "medically justified responses" to the company's questions about her "disability" and that the company extended deadlines to submit the requested information and offered an alternative accommodation.

From Genesis' perspective, there can be no doubt that it looked at its interactions with Costa and said "what else can we do?" It can be assumed that Genesis was skeptical of Costa's last-ditch proclamation of "anxiety" (recall that she offered two earlier non-medical explanations of why she needed to work from home—both of which were insufficient) and wanted a medical care provider to give weight to her anxiety diagnosis. Further, without specific information as to how Costa's anxiety impacted her ability to work, Genesis proposed an accommodation, even if it was not the one desired by Costa.

This decision may be a harbinger of forthcoming claims, with the danger that the employer seemed to follow EEOC guidance but still was faced with a viable failure to accommodate claim. At a minimum, when an employee claims that a disability prevents her from returning to the workplace, employers will want to ensure that the basis for the office-work requirement is justifiable, equitably applied and an employee's "disability" based refusal is well-vetted.