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October 4, 2023
The U.S. District Court for the Eastern District of Virginia recently held that a school principal could not perform the essential functions of her job from home. Jordan v. School Board of the City of Norfolk, No. 2:22-cv-167 (E.D. Va., Sept. 7, 2023). In so holding, the court rejected the principal’s contention that remote work was a reasonable accommodation for her asthma and restrictive lung disease, both of which she claimed were aggravated by the poor condition of the elementary school at which she worked.
Background of the Case
Cheryl Jordan worked as an elementary school principal for Norfolk Public Schools (NPS). Her job duties included numerous supervisory, managerial, and administrative tasks.
From March 2020 to March 2021, NPS provided a remote learning environment for students due to the COVID-19 pandemic. Jordan primarily worked from home during this time.
In November 2020, in anticipation of having to return to an in-person learning environment, Jordan requested an accommodation under the Americans with Disabilities Act (ADA) to continue to work remotely. In support of her request, Jordan submitted documentation from her health care providers, who advised that Jordan suffered from restrictive lung disease and asthma, and that the poor condition of the school building worsened the conditions. NPS denied Jordan’s request for continued remote work, claiming that the essential functions of her job required her physical presence. Alternatively, NPS provided an air purifier to Jordan to help improve the air quality in her office.
In the Spring 2021, when NPS returned to in-person learning, Jordan took leave under the Family and Medical Leave Act. Jordan then made a second request for an accommodation. In this second request, Jordan did not ask to work remotely; instead, she asked to be transferred to a different elementary school within NPS. Before NPS could respond to Jordan’s second accommodation request, Jordan filed a charge of disability discrimination with the Equal Employment Opportunity Commission.
Soon after Jordan filed her charge of discrimination, NPS transferred her to another elementary school, but not the school to which she had sought to transfer.
Jordan then filed a lawsuit against NPS. She asserted two claims of failure to accommodate under the ADA (one for each of her accommodation requests) and one count of retaliation. Jordan’s retaliation claim was based on her allegation that NPS transferred her to a school other than the one to which she sought to transfer in retaliation for her filing a charge of discrimination.
The Court’s Decision
The court’s decision stems from a motion that NPS filed to dismiss Jordan’s claims before trial. The court determined that it could not dismiss Jordan’s accommodation claim or retaliation claim based on her transfer because genuine issues of material fact existed for a jury to decide. However, the court entered judgment in NPS’s favor on Jordan’s accommodation claim related to her request for remote work.
The court considered job descriptions, job postings, vacancy announcements, and deposition testimony to determine whether the essential job functions of an elementary school principal include daily physical presence at the school. Though the job descriptions and other documents did not contain the words “physical presence” and did not prohibit remote work, the duties outlined in each of them clearly implied that physical presence was necessary. Furthermore, Jordan, herself, testified at her deposition that her pre-pandemic daily routine included walks around the building, greeting students and teachers, and observing classroom lessons.
The court noted that, despite the fact that employers, including NPS, permitted remote work or excused performance of one or more essential job functions during the pandemic does not mean that the essential functions of the job changed. The court concluded that “once NPS required students and employees to return for in-person instruction, Jordan was required to resume her job’s essential functions as they were in the pre-COVID era.”
Jordan was unable to demonstrate that she could perform the essential functions of her job remotely. Thus, she was not a qualified individual under the ADA.
Employer Takeaways
If you do not maintain written job descriptions for the roles in your organization, consider writing them (and auditing and revising them as circumstances change). Job descriptions serve as good evidence of what a job’s essential functions are. And, as the Jordan decision demonstrates, courts are likely to defer to the employer’s judgment regarding what functions are essential.
Furthermore, although not directly addressed in the Jordan decision, remember that it is not up to a health care provider to tell you what a reasonable accommodation is. The health care provider should outline the employee’s limitations. It is for you and the employee to engage in the interactive process and determine the appropriate accommodation for those limitations.
This article is designed to provide one perspective regarding recent legal developments, and is not intended to serve as legal advice. Always consult an attorney with specific legal issues.
