We have a special treat for you today—a guest blogger! Rich and I welcome our employee benefits partner Gary Lawson’s article to this Blog—
Whether or not your business has employees within the boundaries of the federal 6th Circuit (Kentucky, Michigan, Ohio, and Tennessee), there are some important lessons employers should learn from the recent decision out of that jurisdiction Mosby-Meachem v. Memphis Light, Gas & Water Div., just affirmed on February 21, 2018.
When it comes to the Americans With Disabilities Act (“ADA”) reasonable accommodations are required and an employer must engage in an interactive process with the employee to determine if one exists which is not unduly burdensome to the employer.
The Miscarriages and then the Baby
Ms. Mosby-Meachem, an in-house attorney, experienced three miscarriages and then had complications with her fourth pregnancy, which required surgery. After that surgery, the doctors ordered ten weeks of bed confinement, but her doctor told the employer that Mosby-Meachem could work from her bed, either in the hospital or at home.
The Failure to Engage in an Interactive Discussion
The employer, a utility company, assembled an ADA committee, and they had a telephonic meeting with Ms. Mosby-Meachem. They then denied her accommodation request to telecommute and work from home, concluding that her physical presence was an “essential function” of Mosby-Meachem’s job and that teleworking created concerns about maintaining confidentiality with the firm’s clients.
From the time of her request on January 7, 2013 until she received the denial letter on January 30, Mosby-Meachem continued to perform her work remotely, and no one from her employer ever told her to stop working during this time.
The Facts Were in Favor of the Employee
Although the 6th Circuit Court of Appeals noted that, several of her job functions, especially interviewing and taking depositions of witnesses, representing the company, trying cases in court, and supervising, directing, and training assigned employees all appeared inherently to require Mosby-Meachem’s in-person participation, there was no evidence that this employee was ever called upon to do actually perform any of these duties. Further, several lawyer witnesses from both inside and outside the company testified that Mosby-Meachem could have performed all of her duties remotely for the ten-week period at issue.
Oh, and this job description was also based on a 20-year-old survey, which didn’t reflect all of the advances in technology.
The Employer’s Failure to Engage in an Interactive Discussion Probably Killed Their Case
Lastly, and very damaging to the employer’s case, Ms. Mosby-Meachem presented evidence that her employer did not in fact engage in an interactive process but had already determined what accommodation it was willing to offer before even speaking with her.
So, What Should You Do Today?
- Before you get an ADA request for accommodation, make sure you have in place policies and procedures as to how you are going to deal with an employee who presents with a disability and a request for an accommodation. Your HR Department, supervisors, and/or senior officers should know not to make damaging statements of policy or opinion that run contrary to the law, like “Nobody here is going to work from home, or take a lay down nap break on the job.”
- Be sure that your job descriptions contain up-to-date descriptions of the “essential functions” of the job. What’s an essential function? Does the position exist to do this job? For example, a horse trainer must be able to around horses- or a fireman around smoke, you can’t be highly allergic to horses or smoke and perform the essential function of those two jobs. A few other examples: must a person be able to climb stairs for the job or carry a certain amount of weight (a firemen), not be visually impaired to the point of being blind (a truck driver), speak (a trial lawyer). This means periodically reviewing all your job descriptions. And it probably means that as part of the process of evaluating the accommodation request, you must review the description for the particular job of the person who’s made the request or who needs the reasonable accommodation to be sure it’s still valid.
- Then, when an employee asks for help with, say, a medical problem, talk with that employee and find out about the nature of the problem. If you discover that your employee has a disability but can still perform the essential functions of her/his job, and wants help figuring out how to keep the job, this is where you continue to engage in an interactive process, discussing the nature of the disability and what you might do to provide a reasonable accommodation.
Side Note—Think Twice About Trying A Case Against Such A Sympathetic Plaintiff
I would add one factor not mentioned by the court but surely worth thinking about. An employee who miscarried (several times) and then had a chance at or perhaps even had a successful birth is likely to become a potentially very “likeable” plaintiff. While that should not be the determining factor in whether or not you can make an accommodation, it certainly seems it might have been a factor in deciding whether to try this lawsuit.