Seyfarth Synopsis: The Sixth Circuit Court of Appeals recently held that telecommuting can be a reasonable accommodation under the ADA when the employee is able to perform the essential functions of the position remotely and the request is for a finite period. Mosby-Meachem v. Memphis Light, Gas & Water Division, No 17-5483 (6th Cir. 2018).

The Facts

The Plaintiff, an in-house attorney for Memphis Light, Gas & Water Division (MLG&W), requested to work from home for ten weeks while she was on bedrest from pregnancy complications. MLG&W denied the request.

MLG&W maintained a rather strict policy that attorneys must be in the office from 8:30 am – 5:00 pm. “However, [it] did not maintain a formal written telecommuting policy at that time, and in practice, employees often telecommuted.”

MLG&W argued that physical presence was an essential function of Plaintiff’s position. Plaintiff stood her ground and stated she was able to perform the essential functions of her position remotely. In fact, Plaintiff knew she could perform the job remotely. During the dispute over whether Plaintiff could telecommute, she was also working remotely. Plaintiff also previously worked remotely for two weeks several years prior.

At trial and in favor of Plaintiff’s disability discrimination claim, the jury awarded Plaintiff $92,000 in compensatory damages and $18,184.32 in back pay.

The Sixth Circuit affirmed. In its finding, the Court noted that MLG&W failed to engage in an interactive process as required by the ADA to determine if working remotely was appropriate. The Court further noted that one of MLG&W’s key pieces of evidence, the job description, was significantly outdated and unreliable (20 years old outdated!).

Additional Guidance

Unfortunately for employers, there is no bright line test on the issue. Just a handful of cases have weighed in on the “telecommute dispute.” The two most notable cases come out of the Sixth Circuit, Williams v. AT&T Mobility Services, LLC, and EEOC v. Ford Motor Co. The cases are distinguishable from Mosby-Meachem for two reasons. First in Williams and Ford, the employees never previously worked remotely. Second, the requests to work remotely were for unlimited periods.

Just last month, in Morris-Huse v. Geico, the Middle District of Florida granted Defendant’s Motion for Summary Judgment holding that telecommuting was not a reasonable accommodation because Plaintiff’s physical presence was an essential function of her position. The Court, like many other courts, reasoned that telecommute disputes are highly fact specific and require a true inquiry into the essential functions of the employee’s position.

For some additional guidance, the EEOC has issued some limited guidance on the matter.

Five Helpful Tips

While there is no hard and fast rule as to whether telecommuting is a reasonable accommodation under the ADA, here are five tips that may avoid putting you in a telecommute dispute:

  1. Evaluate each and every accommodation request on a case by case basis.
  2. Engage in the interactive process with the employee.
  3. Determine if the telecommuting is for a finite period of time.
  4. Think about whether the employee will be able to perform the essential functions of his or position while telecommuting.
  5. Maintain up-to date job descriptions that accurately reflect the essential functions of each position.