As our society advances, the laws that govern it are often modified to reflect the changes that we experience in our daily lives. Labor and employment statutes and regulations are no different, and employers must remain knowledgeable of their rights and responsibilities, as well as those of their employees. This is especially true for the American with Disabilities Act (ADA), a statute that frequently involves litigation that focuses on how employers communicate with employees and whether employers earnestly attempt to help employees maintain employment despite physical or mental limitations. A recent opinion by the Sixth Circuit in Mosby-Meachem v. Memphis Light, Gas & Water Division demonstrates how careful employers must be in evaluating requests for reasonable accommodations under the ADA and how the types of reasonable accommodations available to employees continue to expand.
Andrea Mosby-Meachem worked as an in-house attorney for Memphis Light, Gas & Water Division (MLGW). In January 2013, Mosby-Meachem was hospitalized due to complications with her pregnancy. After undergoing surgery, Mosby-Meachem’s doctors placed her on modified bed rest for approximately 10 weeks. Mosby-Meachem informed her supervisor of her diagnosis and officially requested to work from a bed either within the hospital or within her home for 10 weeks starting on January 7, 2013. Although she submitted documentation supporting her request from her doctor, MLGW’s ADA Committee denied Mosby-Meachem’s accommodation request, stating that physical presence was an essential function of her job and teleworking created concerns about maintaining confidentiality. Mosby-Meachem appealed the denial of her accommodation request twice, but was denied both times. As a result, she received four weeks of FMLA leave and six weeks of short-term disability while she was restricted to bed rest. She returned to work on April 1, 2013 and worked for two weeks until she gave birth to her child.
On December 30, 2013, Mosby-Meachem sued MLGW for pregnancy discrimination in violation of the Tennessee Human Rights Act (THRA) and for failure to accommodate and retaliation in violation of the ADA. Although MGLW moved for summary judgment, the district court denied the motion, and the case proceeded to trial. At trial, the jury returned a verdict in favor of Mosby-Meachem on her ADA claim of disability discrimination. However, it returned a verdict in favor of MLGW on her pregnancy discrimination and ADA retaliation claims. MLGW renewed its motion for judgment as a matter of law, or in the alternative, for a new trial. When the district court denied MLGW’s renewed motion, MLGW appealed to the Sixth Circuit.
Sixth Circuit Upholds Jury Verdict Regarding ADA Claim
On appeal, the Sixth Circuit upheld the jury verdict regarding Mosby-Meachem’s ADA claim. After considering MLGW’s argument that the jury did not have a legally sufficient basis to find that Mosby-Meachem could have effectively performed all of the essential functions of her job with a 10-week teleworking accommodation, the Sixth Circuit found that it was unpersuasive.
In evaluating whether Mosby-Meachem’s requested accommodation was per se unreasonable because it removed several essential functions of her job that could only be performed in person, the Sixth Circuit held that although there was some evidence showing that in-person attendance was an essential function of Mosby-Meachem’s job (e.g., Mosby-Meachem’s testimony, the written job description, and testimony from former MLGW employers), Mosby-Meachem presented other evidence from which a jury could reasonably conclude that she was otherwise qualified to perform her job from home for 10 weeks without being physically present in the office. Such evidence included the testimony of MLGW employees and outside counsel stating that Mosby-Meachem could perform all of the essential functions of her job during the 10-week period that she needed to work from home. The Sixth Circuit also highlighted evidence that undermined the strength of MLGW’s case, including uncontested testimony that Mosby-Meachem had never tried cases or taken depositions during her employment with MLGW—two functions listed in the job description requiring Mosby-Meachem’s physical presence at work—and evidence that the job description that MLGW relied upon was based on a 20-year-old questionnaire that did not reflect changes to the job that had resulted from technological advancements.
After addressing the evidence presented at trial, the Sixth Circuit discussed how Mosby-Meachem differed from the plaintiffs in EEOC v. Ford Motor Co. and Williams v. AT&T Mobility Services LLC, two cases in which the court held that regular attendance at work was an essential function of the plaintiffs’ employment. In comparing Mosby-Meachem to the plaintiffs in the previous cases, the Sixth Circuit emphasized that Mosby-Meachem had worked remotely in the past without any attendance issues or decline in work product. She also requested an accommodation for a limited time period, not indefinitely and on an indeterminate schedule.
The Sixth Circuit concluded its discussion of Mosby-Meachem’s failure to accommodate claim by explaining that while in-person attendance was an essential function of “most jobs,” the court did not expressly preclude teleworking in all cases, particularly if it was for a finite period of time. Furthermore, Mosby-Meachem demonstrated that MLGW did not engage in an interactive process by presenting testimony that MLGW’s president stated: “nobody can telecommute . . . no matter what the circumstances.” Given all of the evidence, the Sixth Circuit ruled that a jury could have reasonably concluded that Mosby-Meachem could perform all of the essential functions of her job remotely for 10 weeks and MLGW did not actually engage in an interactive process.
Effectively Evaluating Requests to Telecommute
Employers can never forget the importance of actively engaging in the interactive process and thoroughly evaluating reasonable accommodation requests presented by employees. Fact-specific inquiries are required. To protect yourself from accusations of disability discrimination, details and documentation are key. When specifically addressing a request to telecommute, be sure to consider the following:
- Do not make premature decisions before engaging in the interactive process. Avoid extreme language such as “never,” “no matter what,” “under any circumstances,” etc. It is the employee’s responsibility to request a reasonable accommodation. Once that request is made, it is your responsibility to evaluate the request and discuss the options that are available to the employee after a thorough understanding of the employee’s physical and mental limitations.
- Assess the employee’s job description, requirements, and duties and compare them with his or her physical or mental limitations.
- Is the job description current and does it accurately reflect the employee’s position? If not, update it as soon as possible and use the new description to evaluate the employee’s ability to perform the essential functions of his or her job.
- Is the employee’s physical presence, in-person communication, and/or teamwork necessary to perform an essential function of the employee’s job? If not, telecommuting may be a reasonable accommodation absent evidence of undue hardship. If so, determine if the employee actually performs that essential function in practice. Telecommuting may not be feasible if the employee regularly performs the essential function, but if he or she does not, it should likely be considered. Regardless, you should also consider the length of the time period requested to telecommute. If it is not extensive or indefinite, telecommuting, at least to the Sixth Circuit, will likely constitute a reasonable accommodation under the law.
- Review telecommuting policies and practices. Do you have a formal written telecommuting policy? If not, create one and have your attorney review it before implementing it. If so, does the employee meet the guidelines already established? If the answer is yes, the employee can be reasonably accommodated by being allowed to telecommute. If the answer is no, management personnel should discuss whether it can allow the employee to telecommute without experiencing undue hardship. If no policy exists at all, examine whether employees telecommute under other circumstances, especially employees without disabilities. If employees are known to work remotely for various reasons, not allowing telecommuting as a reasonable accommodation will raise red flags.