Tenth Circuit Guidance on Accommodating the Post-Pandemic Return to the Office, 1021 COBJ, Vol. 50, No. 9 Pg. 22

PositionVol. 50, 9 [Page 22]

50 Colo.Law. 22

Tenth Circuit Guidance on Accommodating the Post-Pandemic Return to the Office

No. Vol. 50, No. 9 [Page 22]

Colorado Lawyer

October, 2021



This article discusses the recent Tenth Circuit Court of Appeals opinion in Unrein v. PHC-Fort Morgan, Inc., which clarifies the analysis of essential job functions under the Americans with Disabilities Act,

The COVID-19 pandemic has demonstrated that many employees can perform their jobs effectively on nontraditional schedules and at remote locations. As vaccination rates increase and governmental bodies ease pandemic-related restrictions, employers are planning for employees to return to the office. However, some employees will likely request ongoing flexible schedules or remote work arrangements due to concerns about COVID-19 or underlying health conditions. Such requests can implicate the Americans with Disabilities Act (ADA).

This article discusses the recent Tenth Circuit Court of Appeals opinion Unrein v. PHC-Fort Morgan, Inc.,[1] which provides much needed guidance for analyzing work accommodations under the ADA.

The ADA Framework

The ADA forbids discrimination against disabled individuals. As to employment, the ADA prohibits discrimination "against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment."2

In Hennagir v. Utah Department of Corrections'[3] the Tenth Circuit set out the standard for proving an ADA discrimination claim. An employee must

1. meet the AD As definition of "disabled,"

2. be qualified to perform the essential job functions with or without reasonable accommodation, and

3. have suffered discrimination on the basis of the disability.

More than any other employment law, the ADA specifically defines its terms, which the courts have largely construed. Language such as "qualified individual with a disability," "with or without reasonable accommodation," "undue burden," "substantially limits a major life activity," and "essential functions of the job" are terms of art that courts have given meaning to. In Unrein, the Tenth Court clarified further the meaning of "essential functions of the job." Practitioners can use this guidance to analyze whether particular jobs require accommodations under the ADA, particularly as the workplace recovers from the COVID-19 pandemic.

Essential Job Functions

"Essential functions of the job" has long eluded a precise definition. The Equal Employment Opportunity Commission (EEOC) regulations define "essential functions" to mean the performance of duties that are "fundamental" but not "marginal."4Although an employer's judgment about which functions are considered essential is given considerable deference, courts must review the particular facts of each situation under the totality of the circumstances. Relevant factors in this analysis include written job descriptions, time spent on the function, the...

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