Telecommuting Found to be a Reasonable Accommodation

Telecommuting Found to be a Reasonable Accommodation

            In Mosby-Meachem v. Memphis Light, Gas & Water Division, 883 F.3d 595 (6th Cir. 2018), the United States Court of Appeals for the Sixth Circuit revisited an issue that is likely to continue to appear in cases for years to come – whether working from home constitutes a reasonable accommodation under the Americans with Disabilities Act (“ADA”).  In this case, unlike a case decided by the Sixth Circuit three years ago (written about here), the Sixth Circuit decided that telecommuting was a reasonable accommodation and affirmed a verdict that found the employer had violated the ADA by not allowing the plaintiff to telecommute.

Andrea Mosby-Meachem (“Mosby-Meachem”) was an in-house attorney whose request to work from home for ten weeks while she was on bed rest due to complications from her pregnancy was denied by her employer, Memphis Light, Gas & Water Division (“MLGW”).  Mosby-Meachem started working for MLGW in 2005 and her duties primarily involved handling labor, employment, and workers’ compensation matters.  The company did not have a formal telecommuting policy, but employees often telecommuted.  In 2011, the company hired a new General Counsel, who sent an email to all the lawyers in the legal department shortly after commencing employment, which in short stated that attorneys were expected to be at the office from 8:30 a.m. to 5:00 p.m. “to set a good example for the support staff” and, if an attorney was going to be late, he/she was supposed to contact the office to advise the new General Counsel of the situation.  Despite the expectation that attorneys work from the office, Mosby-Meachem was permitted to telecommute for approximately two weeks in 2012 to recover from neck surgery and she apparently performed her duties adequately while telecommuting.

In 2013, however, Mosby-Meachem experienced complications with her pregnancy that required hospitalization.  Mosby-Meachem was placed on bed rest for ten weeks, during which time she could not stand or sit for prolonged periods of time and she could not lift heavy objects.  She formally requested an accommodation that would allow her to telecommute during this period of time, and provided a letter from her doctor stating that she could perform work from home (or the hospital).  A committee was formed to respond to Mosby-Meachem’s request.  During a telephonic interview, the committee asked Mosby-Meachem whether she could perform the essential functions of her job from home, to which she responded affirmatively.  Despite Mosby-Meachem’s assurances of her ability to perform her job from home, the committee denied her request because it determined that physical presence in the office was an essential function of her job and telecommuting presented concerns about confidentiality.  Notably, during the time from her formal request to the date on which it was denied (January 7 through January 30), Mosby-Meachem worked from home and no one from the company told her during that time that she could not work from home.  After her request was denied, Mosby-Meachem used sick leave and FMLA leave, as well as short-term disability, and was on leave until April 1.  She gave birth on April 14.  Later that year, Mosby-Meachem filed suit against MLGW alleging pregnancy discrimination under the Tennessee Human Rights Act and failure to accommodate and retaliation under the ADA.  The jury returned a verdict for Mosby-Meachem on her ADA disability discrimination claim and it returned a verdict for MLGW on the pregnancy and retaliation claims.  MLGW’s post-trial motions were denied, and it appealed.

The first and primary issue the Sixth Circuit addressed was whether there was a legally sufficient basis to find that Mosby-Meachem could have effectively performed the essential functions of her job from home during the ten week period she was on bed rest.  MLGW contended that Mosby-Meachem’s request to telecommute was per se unreasonable because it removed essential functions from her job, namely physical presence in the office.  The court noted that there was some evidence before the jury that supported finding physical presence in the office was an essential function of Mosby-Meachem’s job, including an enumerated list of essential functions in Mosby-Meachem’s job description and Mosby-Meachem’s acknowledgement under oath that the first nine functions listed on her job description were in fact essential (although she also stated that she could perform those tasks remotely).  Some of the particular job functions that required a physical presence in the office included interviewing and taking depositions of witnesses, representing the company in court, and supervising and training employees.  The court, however, noted that there also was contrary evidence, including testimony from co-workers, from which a reasonable jury could conclude that Mosby-Meachem was otherwise qualified to perform the essential functions of her job from home for ten weeks without being physically present in the office.  To this end, MLGW employees and outside counsel testified they believed Mosby-Meachem could perform all essential functions of her job from home during the ten week period she was on bed rest.  Furthermore, Mosby-Meachem presented evidence that she never performed some of the tasks that would require her physical presence in the office during her employment at MLGW, such as try a case or take the deposition of a witness.  In addition, there was evidence that the job description was drafted based on a 20 year old questionnaire that did not reflect changes in the job from technological advances, instead of the questionnaire Mosby-Meachem filled out in 2010.

The court also addressed its decision in E.E.O.C. v. Ford Motor Company (written about here), and a more recent case, Williams v. AT&T Mobility Services, LLC, 847 F.3d 384 (6th Cir. 2017).  While the court acknowledged its decision in Ford found in-person attendance is an essential function of most jobs, that case and Williams left open the possibility that telecommuting could be a reasonable accommodation in certain circumstances, particularly because determinations as to what constitutes a reasonable accommodation are fact specific and must be decided on a case-by-case basis.  The court explained that Mosby-Meachem’s case was one such case, and its prior decisions in Ford and Williams did not preclude finding telecommuting was a reasonable accommodation.  The Sixth Circuit proceeded to distinguish Ford by noting, unlike the plaintiff in Ford, Mosby-Meachem had a history of good job performance without absenteeism issues during periods where she telecommuted.  Additionally, the court noted that unlike the plaintiff in Ford, who wanted to work off-site up to four days a week, Mosby-Meachem sought to telecommute only ten weeks.  The court distinguished Williams by noting that, as a call center employee, the plaintiff had to be physically present and logged into her computer to receive calls, otherwise the calls would be routed to another employee.  The court further distinguished Williams by noting Williams’ anxiety from taking customer calls made her incapable of performing the essential functions of her job.  Mosby-Meachem, on the other hand, was not required to be at a desk, she had demonstrated that she was capable of working remotely, and her need for an accommodation was only for a limited duration, as opposed to an indefinite period of time.

The Sixth Circuit’s decision in Mosby-Meachem is an important reminder about the need to address reasonable accommodations under the ADA on a case-by-case basis.  It also provides some guidance on the complex issue of how to handle telecommuting as a reasonable accommodation.  While in-person attendance continues to be recognized as an essential function in many instances, many job functions can be performed from home with modern technology and, once an employer makes a “limited” exception to an in-office work requirement by allowing an employee to telecommute even on a temporary basis, the employer may unintentionally undermine its argument that physical presence in the office is required.  In addition, the Sixth Circuit appears to have limited the deference it may give an employer about the need to work in an office when the need to telecommute is temporary versus long-term.  At bottom, issues surrounding telecommuting as a reasonable accommodation under the ADA remain complicated and can lead to liability if denied.  Companies should address these decisions in consultation with counsel.