Finite Request to Telecommute was a Reasonable Accommodation

By: Karen L. Piper

The Sixth Circuit Court of Appeals affirmed a jury verdict in favor of an in-house attorney who claimed that she was unlawfully denied a reasonable accommodation during a 10-week period of modified bed rest ordered by her doctor following surgery. Mosby-Meachem v. Memphis Light, Gas & Water Div., Case No. 17-5483 (6th Cir. Feb. 21, 2018).

The employer’s legal department had an 8:30am-5:00pm attendance policy for its attorneys.  Although the employer did not have a formal written telecommuting policy, in practice, employees often telecommuted.

Following surgery and placement on modified bed rest, the attorney made an official accommodation request, supported by medical documentation, that she be permitted to work from a bed either within the hospital or within her home for ten weeks. The employer’s ADA Committee rejected the proposal based on its determination that physical presence in the office was an essential function of the attorney’s job, and that telecommuting created concerns about maintaining confidentiality. The attorney’s internal appeals were denied. The attorney used FMLA leave to cover the period.

Following her return to work, the attorney filed a lawsuit against her employer for failure to accommodate and retaliation under the Americans with Disabilities Act and for pregnancy discrimination under state law. In relevant part, the jury awarded her a verdict of $92,000 in compensatory damages on her claim of disability discrimination. The employer appealed.

The employer’s primary argument on appeal was that the attorney had not presented sufficient evidence that she was a qualified individual with a disability because physical attendance was an essential function of her job and she needed to work from home. There was some evidence to support the employer’s argument. The Court found that other evidence supported the jury’s finding that the attorney was able to perform the essential functions of her job remotely for ten weeks. Several coworkers and outside counsel testified that they felt she could perform all essential functions from home for a 10-week period. There was testimony that the attorney job description was based on a 20-year old questionnaire and did not reflect changes in the job which resulted from technological advances. There also was testimony that the job description included tasks, such as trying cases and deposing witnesses, which the attorney had never performed in her eight years of employment with the employer before her request to telecommute. The court ruled the attorney’s request was reasonable under the circumstances and affirmed the jury verdict in her favor.

All requests for accommodation should be examined on a case-by-case basis. Requests to telecommute seem to be especially challenging for employers. These requests should be discussed with experienced employment counsel, such as the author, and include consideration of the length of time the employee is asking to telecommute.

This article was written by Karen L. Piper, who is Chair of the Legal Affairs Committee of Detroit SHRM, and a Member of Bodman PLC, which represents employers, only, in Workplace Law. Ms. Piper can be reached at Bodman’s Troy office at (248) 743-6025 or kpiper@bodmanlaw.com. For further information, go to: http://www.bodmanlaw.com/attorneys/karen-l-piper.

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information are included in the re-post of the article. March 2018.