Pandemic Conditions Were Key Factor in ADA Accommodation Case

Takeaway: This case illustrates the highly fact-based nature of reasonable accommodation determinations in disability discrimination cases. Here, the extraordinary circumstances engendered by the COVID-19 pandemic, coupled with the employee’s failure to propose any alternative accommodation, tipped the balance in the employer’s favor.

A home health care agency’s refusal to eliminate all field visits from a nurse manager’s duties in the midst of the COVID-19 pandemic was not unreasonable under the Americans with Disabilities Act (ADA), according to the 4th U.S. Circuit Court of Appeals.

The employee had spent 17 years as a field nurse providing in-home care. Chronic arthritis eventually limited her ability to perform tasks requiring her to squat, kneel, bend or otherwise stress her knees. She transitioned into a position as a clinical manager in July 2017. After a company reorganization, she was again offered and accepted a clinical manager position. Hiring representatives had assured her that she would not be required to provide direct patient care and that field visits would be infrequent and supervisory in nature. Nevertheless, her job description included requirements—as needed—to:

• Complete field visits. 
• Work on-call in the field.
• Occasionally bend, stoop, and lift up to 50 pounds with or without assistance.

At the onset of the pandemic in the spring of 2020, the employer informed staff—including clinical managers—that they would be required to perform field visits until the company could hire additional field nurses to address a severe shortage. The employee requested an accommodation, supported by a doctor’s note, excusing her from performing any field visits. The employer declined to eliminate field visits altogether but offered to allow the employee to select those that would not involve squatting and bending, and to space them out over the course of a week. The employee again rejected the proposed accommodation, and the employer again declined her request to eliminate field visits.

The employer said field visits were an essential job function and asked what alternative accommodation the employee might request. The employee offered additional objections to the proposed accommodation and suggested no alternative. Unable to reach an agreement, the employer warned the employee that failing to make herself available for field visits by a certain date would be considered job abandonment. That is what ensued.

The employee ultimately sued the employer under the ADA for failure to accommodate, discrimination and retaliation. The district court granted summary judgment to the employer on all claims. 

Discrimination under the ADA can include failing to make reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability.  The ADA also prohibits covered employers from retaliating against “any individual because such individual has opposed any act or practice made unlawful by [the ADA] or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [the ADA].” 

To survive summary judgment on a failure-to-accommodate claim, a plaintiff must show:

• She had a disability.
• The employer had notice of her disability.
• She could perform the essential functions of her position with a reasonable accommodation.
• The employer refused to make such an accommodation. 

Only the third and fourth elements were under dispute. As to the third element, the district court concluded that performing field visits was an essential job function. But

even if that was not the case, the employee’s claim still failed on the fourth element: She refused the employer’s proposed accommodation.

An employer is not necessarily required to provide the exact requested accommodation. Nor must an employer always reallocate nonessential job functions for a given accommodation to be reasonable. So, the question here was whether a jury could fairly conclude that the employer’s proposed accommodation, which did not eliminate field visits, was unreasonable in light of “the particular circumstances of the case,” the 4th Circuit said. 

In the spring of 2020, the COVID-19 pandemic led to a severe lack of field nurses, which adversely affected patient care. Accordingly, the employer made a nonarbitrary decision to require all internal staff to assist with field visits. Given the “unique set of facts involving the devastating impact of COVID-19,” coupled with the employer’s ultimate discretion to select between potential alternatives, a rational jury could not conclude that the employer acted unreasonably, the 4th Circuit held.

As to the discrimination claim, the employee could not prove that at the time of discharge, she was fulfilling the employer’s legitimate expectations, nor did she allege facts from which a reasonable inference of unlawful discrimination could be drawn. As to the retaliation claim, the employer provided a legitimate, nonretaliatory reason for the termination: the employee’s failure to perform any field visits, even with a reasonable accommodation, despite multiple warnings. Nor was there evidence of pretext.

Tartaro-McGowan v. Inova Home Health, LLC, 4th Cir., No. 22-1825 (Jan. 17, 2024), motion for rehearing or rehearing en banc denied (Jan. 31, 2024).

Margaret M. Clark, J.D., SHRM-SCP, is a freelance writer based in Arlington, Va.