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Thursday, February 22, 2018

When does telecommuting qualify as a reasonable accommodation?

I’m writing today’s post from the comfort of the kitchen island in my house. My son has the flu, and I’m working from home.

It’s been three years since the 6th Circuit decided EEOC v. Ford Motor Co., a groundbreaking decision in which the court issued its en banc decision declaring that telecommuting is not an appropriate reasonable accommodation, unless the employee can show that that regular attendance in the workplace, and face-to-face interaction with co-workers, are not essential elements of the employee’s job. 

Yesterday, the same court decided Mosby-Meachem v. Memphis Light, Gas & Water Division [pdf], which defined the parameters of when an employee’s job does qualify for remote work as a reasonable accommodation.

The plaintiff, Andrea Mosby-Meachem, worked as an in-house labor and employment attorney for Memphis Light, Gas & Water Division. Her boss, MLG&W’s general counsel, Cheryl Patterson, had a written policy requiring strict attendance at work for all who worked in her office:

Yet, despite that policy, employees often worked from home, including Mosby-Meachem. She had telecommuted for two weeks, without incident, while recovering from neck surgery.

After suffering three prior miscarriages, Mosby-Meachem became pregnant for the fourth time, and, after suffering some complications, her doctors placed her of bed rest for the last 10 weeks of her pregnancy. Yet, when she asked Patterson to allow her to work from home as an accommodation for the medical conditions stemming from her pregnancy, the company’s ADA committee denied her request.

The 6th Circuit upheld the jury’s determination that MLG&W violated the ADA by denying Mosby-Meachem’s accommodation request.

MLG&W argued that because Mosby-Meachem’s job required in-person attendance, her accommodation request to telecommute was per se unreaonable.

The 6th Circuit disagreed:
Mosby-Meachem presented sufficient evidence supporting a finding that she could perform all the essential functions of her job remotely for ten weeks. For example, several MLG&W employees as well as outside counsel who worked with Mosby-Meachem testified that they felt she could perform all essential functions during the 10-week period working from home. … 
The ADA Committee understood its orders as “staying firm on the telecommuting mandate from [MLG&W president] Jerry Collins” that “nobody can telecommute … no matter what the circumstances.” Given this evidence, the jury could have reasonably concluded that MLG&W did not actually engage in an interactive process.

What lessons can employers learn from this case?
  1. Telecommuting can be an appropriate reasonable accommodation, depending on the facts and circumstances of an employee’s job, and whether actual in-person attendance is required, or merely preferred.

  2. Prior successful implementation of the requested accommodation makes it difficult for an employer to argue its lack of reasonableness.

  3. In ADA-land, mandates and inflexibility are bad. The ADA requires an interactive process before an employer can grant or deny any request for a reasonable accommodation. When an employer works off of mandates that are contrary to the requested accommodation, the denial of that request is predetermined, which renders the interactive process meaningless. A meaningless interactive process leads to ADA violations, period.

  4. Do not piss off the labor and employment attorney working for you.

To conclude, let me repeat that which I said in criticizing the Ford opinion three years ago:
Telecommuting is an important benefit that promotes work/life balance for employees. It is a great benefit that employers should be using to attract and retain the employees to whom this benefit matters. With the state of technology in 2015 (2018), there is little reason that employers should not be offering it all but the most extreme cases.