Executive Summary: On February 21, 2018, the Sixth Circuit Court of Appeals held an attorney could perform the essential functions of her job while working remotely for a ten-week period. As a result, when the employer refused to permit the employee’s telecommuting request for the finite period, the employer failed to accommodate the employee in violation of the Americans with Disabilities Act, according to the court.

Background

The plaintiff, Andrea Mosby-Meacham, an in-house lawyer for Memphis Light Gas & Water (MLGW), requested to work from home for ten weeks after she was placed on modified bed rest during pregnancy. MLGW’s ADA Committee conducted a telephonic meeting with Mosby-Meacham, but denied her request to telecommute, determining physical presence was an essential function of her job.

Mosby-Meacham filed a lawsuit alleging failure to accommodate, pregnancy discrimination, and retaliation. After a trial, the jury returned a verdict for Mosby-Meacham on the failure to accommodate claim and awarded her $92,000 in compensatory damages. The jury found in favor of MLGW on pregnancy discrimination and retaliation. The District Court denied MLGW’s motion for a new trial, but granted Mosby-Meacham’s request for equitable relief in the form of lost pay and her forced use of sick time. MLGW appealed.

MLGW argued Mosby-Meacham could not perform the essential functions of her job with the requested ten-week telecommuting accommodation. MLGW pointed to an interoffice memorandum stating MLGW expected its lawyers to be at work and in the office during office hours. However, the company had no formal written telecommuting policy, and, in practice, employees often telecommuted. In fact, Mosby-Meacham had previously worked from home for two weeks while recovering from neck surgery.

MLGW provided testimony from former employees who testified physical presence was an essential function. MLGW also relied on a job description that listed the following as essential functions: (1) interviewing and taking deposition of witnesses, (2) trying cases in court, and (3) supervising, directing and training assigned employees.

Mosby-Meacham presented several MLGW employees and outside counsel who testified Mosby-Meacham could have effectively performed her job from home. The evidence revealed Mosby-Meacham had never participated in a trial or taken a deposition, and that although those functions were included in the job description, the job description was based on a 20-year old questionnaire.

The Sixth Circuit’s Decision

The Sixth Circuit distinguished the facts from prior decisions, which had held attendance was an essential function. The instant facts relied upon by the court included that Mosby-Meacham had performed her duties remotely in the past, her job was not tied to her office desk, and the requested accommodation was for a limited duration. The court held its previous opinions left open the possibility of telecommuting as a reasonable accommodation – particularly for a finite period of time.

Based on these facts, the Sixth Circuit found Mosby-Meacham was otherwise qualified to perform her job from home for ten weeks without being physically present in the office and that MLGW had failed to accommodate her. The Court also held MLGW had not properly engaged in the interactive process because MLGW’s ADA Committee had understood the internal memorandum as a universal prohibition on telecommuting and applied it accordingly.

Employers’ Bottom Line

As employers should with every accommodation request, telecommuting requests should be evaluated on a case-by-case basis, without a complete bar of such a practice. Prior to denying a telecommuting request as an accommodation, employers should engage in the interactive process with the employee to determine whether in-person attendance is an essential function of the position. Employers should also maintain up-to-date job descriptions that accurately reflect the essential functions for each position.