As technology improves, nonprofits will inevitably see more employees and job applicants who want to telework from home or another location. Nonprofits have many legitimate business reasons to grant or deny such a request. But a nonprofit employer's obligations are harder to sort out when the employee requesting telework is pregnant.
It was just this type of request that recently landed Memphis Light, Gas & Water Division in court. One of its in-house attorneys was placed on bedrest by her doctor for 10 weeks during her pregnancy. The attorney asked to telework for the time she was on bedrest; the company said no. A jury found that the denial violated the employee's right to a reasonable accommodation, and the Sixth Circuit affirmed.
Memphis Light denied the request because, in its view, in-person attendance was essential to the employee's job. The court, however, found there was ample evidence on which the jury could find otherwise. For example, the company had recently allowed the same employee to work from home for two weeks while recovering from surgery, with no apparent impact on her performance. Furthermore, the employee teleworked the entire time her request for an accommodation was pending, and Memphis Light never told her to stop. The court also rejected the company's reliance on its 20-year-old job description, noting that the document didn't reflect how changes in technology affected the job's responsibilities. Compounding the problem, the court noted that Memphis Light failed to engage in any meaningful discussion with the employee about her request; it treated its denial as a foregone conclusion.
The area of the law implicated by this request is a Bermuda triangle of employment law: Title VII of the Civil Rights Act, the Americans with Disabilities Act (ADA), and the Family and Medical Leave Act (FMLA). Title VII prohibits discrimination based on an employee's sex, including based on pregnancy. The ADA requires certain accommodations for employees who are considered to have a "disability" under its provisions, which can include disabilities related to pregnancy (notably, pregnancy itself is not a "disability," but pregnancy-related complications can be). The FMLA guarantees eligible employees up to 12 weeks of unpaid job-protected leave for medical purposes, including pregnancy complications and recovery from birth. In addition, your state or city may have additional laws that would apply to pregnant employees (such as this new DC law, which will grant employees paid parental leave starting in 2020). Nonprofit organizations may have their own additional parental leave or medical leave policies.
So what can a nonprofit do? Because every person and every pregnancy is different, there is no one answer. At a minimum, nonprofits should consider the following:
- Make Exceptions if Necessary: Even if you have a policy against teleworking, you may need to make an exception as a reasonable accommodation. An employee's medical needs may override a nonprofit's preference for employee "face time" in the office. Memphis Light presented significant evidence that it wanted to foster a culture where employees were regularly in the office, but the employee's need for an accommodation prevailed.
- Be Open-Minded: Nonprofits must engage in the interactive process before determining whether telework is reasonable for a specific employee. Nonprofits should keep an open mind when responding to requested accommodations, even if it appears that the options are cut and dried, such as with an employee placed on bedrest. Moreover, don't assume that you know what a pregnant employee needs. Medical opinion on what pregnant women can or should do is constantly evolving.
- Look at Each Request Individually: Whether telework is a reasonable accommodation will depend on the specifics of each individual employee's job. A court will look at an employee's actual duties, and will not necessarily rely on a job description, especially if that job description predates current technology. If your nonprofit is relying on 20-year-old job descriptions, revise them.
- Leave May Not Be Good Enough: Be wary of pushing pregnant employees to take an unpaid leave, including FMLA, if a less restrictive accommodation like temporary telework could be a viable option. The court in Memphis Light noted that the request for telework was for only 10 weeks, and not indefinite; it was reasonable in part because it was limited.
- Consider the Employee's Past Performance: Nonprofits can and should consider an employee's history of telework, if any, when determining whether telework makes sense. If your employee has a history of successful short-term telework, the nonprofit might be required to provide it as a reasonable accommodation. If the employee has routinely abused a telework privilege, you may have grounds to deny an otherwise reasonable request or put in place extra safeguards to make sure work is done properly.
- Have Clear Policies: Nonprofit employers can and should have telework policies or use telework agreements to set out clear expectations for employees who work remotely. These policies and agreements often spell out the type of workspace an employee must have to maintain efficiency and confidentiality while working from home. In these documents, employers may also make clear that telework is not a substitute for dependent care, and can require that caregivers have reliable care arrangements in place during the time that they are working.
The law in this area will evolve as technology continues to make remote work a viable business opportunity for nonprofits. Nonprofit employers should expect that their practices around telework will need to evolve as well.