Labor & Employment Law Daily Wrap Up, DISCRIMINATION—DISABILITY—D. Kan.: Dispatcher’s request for part-time schedule to accommodate COVID-19 fatigue not reasonable, (Aug 19, 2025)

By Marjorie Johnson, J.D.

Though the employer had other staff cover her duties during her extended leave to recover from COVID-19, it was not required to grant her request for a reduced workweek as a reasonable accommodation.

A former dispatcher at an engineering consulting firm—who was terminated because she could not work in a full-time capacity due to post-COVID fatigue, anxiety, brain fog, and difficulty concentrating—failed to survive summary judgment on her ADA claims since the employer demonstrated that an essential function of the job was “the regular and reliable attendance as a full-time employee.” Although it had taken an “all hands on deck” approach during her months’ long absence due to her original COVID-19 infection, her request to convert her full-time position into a part-time position was not a reasonable accommodation as a matter of law, a federal court in Kansas ruled. Her FMLA claims also failed since she had not worked the required hours to be eligible for FMLA leave at the time of her latest request (Ross v. Terracon Consultants, Inc., No. 23-2537-EFM (D. Kan. Aug. 18, 2025)).

Hired as full-time worker. On May 26, 2020, the employee began working as the full-time dispatcher for Terracon Consultants. She was the only dispatcher in the office, and her duties included answering phone calls, making schedules, dispatching jobs, and scheduling employees. She often worked overtime, especially in the summer and fall.

Remote during pandemic. When she was hired, the country was in the middle of the COVID-19 pandemic. As a result, she was allowed to work remotely until early 2021, when the company began bringing staff back into the office.

COVID-19 absence. On September 19, 2021, the employee tested positive for COVID-19 and was hospitalized from September 23 until November 22, 2021. She was approved to take FMLA leave followed by long-term disability through March 31, 2022. During her absence, the employer did not replace her, but instead implemented an “all-hands-on-deck” strategy to cover her duties.

Request for reduced workweek. On April 1, 2022, she returned to work with no medical restrictions. In August, she submitted a doctor’s note requesting that she work no more than 30 hours per week due to her post-COVID fatigue, anxiety, brain fog, and difficulty concentrating. On August 10, she also requested additional medical leave and disability benefits. On August 15, the employer informed her that she was not eligible for FMLA leave, but qualified for leave under the employer’s medical leave program.

Other staff covered duties. Meanwhile, the employer allowed her to work a reduced 30-hour weekly schedule. This required others to cover some of her duties since the dispatcher role could not be performed by a single person working only 30 hours per week. Around the same time, she submitted a doctor’s note requesting that she be allowed to telecommute.

Terminated. The employer terminated the employee on September 12, 2022, explaining in an email that “having multiple personnel cover [the dispatcher position] is leading to strain on the team and our clients and we need a full-time person available for those duties.” During her termination meeting, she was advised that “her employment was being terminated because her accommodations weren’t working for the company.”

Lawsuit. She sued, alleging the employer violated the ADA, as amended by the ADAAA, by failing to allow her to work a reduced workweek and firing her. She also claimed the company violated the FMLA by terminating her shortly after she applied for medical leave and when she was just 113 hours short of being eligible for FMLA leave.

Not “qualified individual.” The court agreed with the employer that the employee’s ADA claims failed since she could not perform the essential functions of her dispatcher job with or without a reasonable accommodation, and thus was not a “qualified individual.” Significantly, several undisputed facts demonstrated that an essential function of her position was regular and reliable full-time attendance.

Full-time nature of job. For instance, she was told during the interview process that the job was a full-time position that could entail overtime, and that she was also expected to be available outside normal business hours to take calls from team members. A supervisor also testified that the role could not be completed by one person who only worked 30 hours per week. Her predecessors had historically worked on a full-time basis, and before she contracted COVID-19, the company did not assign any of her coworkers to perform dispatcher duties.

The employee argued that full-time work was not essential since the employer had operated without a full-time, dedicated dispatcher for more than eight months during her bout with and recovery from COVID-19, and had initially granted her request to work a 30-hour work week. However, the court found that the employer’s efforts to temporarily cover her duties by taking an “all-hand-on-deck” approach did not contradict its position that an essential function of the dispatcher role required regular, reliable attendance as a full-time employee. To accept her argument that the company’s gap-filling measures demonstrated that the dispatcher role is not full time would penalize the company for its compliance with the FMLA and for its acts of grace in excess of those requirements.

Part-time work not reasonable. For these reasons, she also could not show that working a reduced workweek constituted a reasonable accommodation. Though she again pointed to the employer’s gap-filling measures, the company’s “all-hands-on-deck” approach and workshare arrangement demonstrated that her duties were assigned to others while she was unavailable or working part-time. Thus, the court found that her request to work part-time was unreasonable as a matter of law since an essential function of the dispatcher role was its full-time nature.

Not eligible for FMLA leave. The court also tossed her FMLA claims of interference and retaliation since it was undisputed that she was not eligible for FMLA leave at the time of her request. An employee is “eligible” if she has “been employed for at least 12 months by an employer covered under the statute, and has worked at least 1,250 hours for the employer during the previous 12-month period.” Here, it was undisputed that at the time she submitted her latest FMLA leave request, she had worked 1087.20 hours in the previous 12 months.

The case is No. 23-2537-EFM.

Judge: Melgren, E.

Attorneys: Nickalaus C. Seacord (Siro Smith Dickson) for Elizabeth Ross. Phillip C. Thompson (Jackson Lewis) for Terracon Consultants, Inc.

Companies: Terracon Consultants, Inc.

Cases: DisabilityDiscrimination Discrimination Discharge EmployeeLeave Covid19 KansasNews