Takeaway: Because of technological advances and the COVID-19 pandemic, determining whether in-person attendance is an essential function of a specific job has become much more of a case-specific inquiry.
A radiology department director at an Indiana hospital who could not wear a mask and wanted to work remotely during the COVID-19 pandemic lost her case under the Americans with Disabilities Act (ADA). The 7th U.S. Circuit Court of Appeals recently found that she could not perform the essential functions of her job without being present to oversee her department.
St. Mary’s Health Inc., doing business as St. Vincent Hospital in Evansville, Ind., hired the plaintiff in May 2016 as the executive director of imaging services. She supervised approximately 120 radiology department employees. She was responsible for planning, administering, monitoring and evaluating the delivery of imaging services to patients.
The plaintiff did not directly provide medical services to patients, but monitored the plan for patient care services and coordinated between the radiologist, radiology staff and department leaders. She also oversaw the installation and maintenance of equipment to protect and assist patients and staff, and was required to use personal protective equipment as needed.
She was diagnosed with attention-deficit/hyperactivity disorder and anxiety disorder before she started working at the hospital. In 2017, she was diagnosed with post-traumatic stress disorder. In 2018, she applied and was approved for intermittent Family and Medical Leave Act (FMLA) leave. She only used one or two days of leave before December 2020.
On March 15, 2020, hospital management instructed employees to work remotely as the spreading COVID-19 virus became a pandemic. The plaintiff worked remotely and went to the hospital two or three times a month. At the beginning of August 2020, she stopped going onsite because the hospital required that everyone inside wear a mask. The plaintiff contended she was unable to wear a mask because of her anxiety.
All the department heads aside from the plaintiff returned to in-person work, and the vice president of operations told the plaintiff on Oct. 23, 2020, that she needed to work in person at least a few times a week. The plaintiff responded that she could not wear a mask, and the vice president initially thought that the inability stemmed from recent eye surgery. He suggested a plastic face shield and tried to help her find a mask that would not cause irritation.
On Oct. 29, 2020, the plaintiff obtained a doctor’s note that said she could not wear a mask due to anxiety and recommended that she work entirely from home, if possible. The hospital told the plaintiff that she needed to return to the office by Dec. 7, 2020. On Jan. 12, 2021, the plaintiff submitted a second doctor’s note requesting that she work remotely, but with an alternative allowing for in-person work two days a week for six hours each day, working as much as possible in her office using remote technology. This request was denied.
From January 2021 through May 2021, the plaintiff worked in person two days a week, mostly in her office with the door closed without a mask, and used FMLA leave and accrued paid leave to cover the remaining three days each week. The plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) on March 8, 2021, alleging ADA discrimination. Once the plaintiff ran out of FMLA leave, she took a leave of absence from May 2021, until Aug. 9, 2021.
On Aug. 1, 2021, the plaintiff said she intended to return to work on Aug. 9. Yet the plaintiff resigned rather than return to work. The plaintiff filed another charge with the EEOC on Sept. 28, 2021, again alleging discrimination for being required to return to the office.
Discrimination Lawsuit
The plaintiff filed a lawsuit against the hospital, claiming ADA discrimination. The hospital moved for summary judgment, which the district court granted. The plaintiff appealed to the 7th Circuit.
On appeal, the 7th Circuit reviewed its case law regarding whether in-person work is an essential function of a position. In this case, the appeals court found that the plaintiff supervised numerous employees who complained that her absence affected their performance. Several employees had to monitor staff and radiological equipment in her absence, and the plaintiff was not available to serve as a liaison between departments and staff members.
As a result, the 7th Circuit upheld the decision of the district court granting summary judgment.
Kinney v. St. Mary’s Health Inc., 7th Cir., No. 22-2740 (Aug. 7, 2023).
Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.