The question of whether telecommuting is a reasonable accommodation under the ADA continues to stump many employers - especially those that do not ordinarily allow telecommuting by their employees. Some jobs just require the employee to be in the workplace. A receptionist cannot receive visitors and probably cannot effectively route calls from his or her home. A manager of any kind likely has to be at the workplace at least part of the time in order to manage staff. Hopefully, employers who believe that being in the workplace at least part of the time is an essential function of the job in question have made that clear in both the job description as well as in practice. Here’s one that did not and paid the price.
Andrea Mosby-Meachem, an in-house attorney for Memphis Light, Gas & Water Division, was denied a request to work from home for ten weeks while she was on bed rest due to complications from pregnancy. The company took the position that it was an essential function of her job that she report to the workplace. Its proof of this rested in part on a policy emailed to staff in the Legal Department that said the following:
Please be reminded that office hours for the Legal Department are 8:30 a.m. - 5:00 p.m. Monday through Friday. All employees, including the lawyers, are expected to be at work and devoting their time and attention to Division business during those hours. As professionals, you are expected to set a good example for the support staff by being in the office on time and staying at work until the end of the day. If you anticipate arriving after 8:30 a.m., please contact the office to inform me of the situation. Likewise, if you have a meeting or hearing in the downtown area that ends before 5:00, you are expected to return to the office to complete the day’s work.
The company also did not have a formal telecommuting policy, but in practice, employees occasionally, including plaintiff, have worked from home. Plaintiff also worked under a nearly 10 year old job description which included as essential functions, activities such as prepare and conduct trials and take depositions, although plaintiff, whose work was focused in the areas of labor, employment and workers compensation, had never conducted a trial in her career with the company, and who maintained that her practice areas were well suited for telecommuting.
Plaintiff’s request for an accommodation was denied by the company on the basis that physical presence at the workplace was an essential function of her job and that the company had concerns about maintaining confidentiality of information if she worked from home or the hospital, as was her plan. Ironically, through roughly three to four weeks of the interactive process and appeal from denial of her request, plaintiff worked from home. No one at the company directed her to stop.
Plaintiff ultimately filed suit for violation of the ADA as well as pregnancy discrimination under a state Human Rights Act. A jury found in favor of the plaintiff, awarding her over $100,000 in damages. Where the employer went wrong, according to the jury, was that the job description, on which the employer relied, was outdated and didn’t reflect the actual essential functions of the plaintiff’s job. For instance, it included preparing and conducting trials, which the plaintiff never did. Rather, it was more like a generic job description for attorneys at plaintiff’s level and so was unreliable evidence of the essential functions of the job. Secondly, it could be easily inferred from the legal department’s attendance policy that the supervisor was concerned about lawyers setting a ”good example” by being “at work” during business hours, although setting a good attendance example was not an essential function of plaintiff’s job. Finally, the company kind of shot itself in the foot by allowing plaintiff to actually work from home for a while until it concluded that working from home was not a reasonable accommodation.
Employers can learn three lessons from this case. The first is that it is important that job descriptions reflect the current essential functions of the position, as opposed to a generic or outdated description of the job. Secondly, employers should consider how they want to designate the absence of an employee who cannot come to work as a result of a disability or pregnancy while they engage in the ADA interactive process. In other words, don’t unintentionally grant the request by allowing it while you consider whether the request is reasonable. Here the company might have fared better overall if it placed the plaintiff on FMLA leave during the interactive process instead of allowing her to telecommute. Thirdly, courts will not automatically find that telecommuting is an unreasonable accommodation under the ADA, therefore employers should not deny out of hand all requests of this nature. This is not to say that employers must establish permanent telecommuting policies, but if the length of the request is reasonable and the position is suited to working away from the worksite, then telecommuting should be considered and may be an option.