Attorney Entitled To Telecommuting As A Reasonable Accommodation


by Cody Elyse Brookhouser-Sisney

cbrookhouser-sisney@mcgrathnorth.com
(402) 341-3070

The issue of whether telecommuting is a reasonable accommodation for a disability has been a controversial one. If the employer wishes to refrain from offering telecommuting, it must establish that physical presence in the office is an “essential function” of the job. The Sixth Circuit recently upheld a jury verdict in favor of an in-house attorney finding that her employer violated the Americans with Disabilities Act by not allowing her to work remotely while she was on bed rest during her pregnancy.

The issue was hotly contested at trial with testimony both that a physical presence was necessary for a lawyer to effectively perform their job and, from the other perspective, that it was not.

In reviewing the trial court decision, the Sixth Circuit Court of Appeals noted that the plaintiff had been allowed to work from home before, including two weeks after a previous surgery and, again, during the period from January 7 until she received the denial of her accommodation request on January 30.

The company had argued during the trial that the written job description for the position required physical presence. It noted that most jobs, especially interactive ones, required physical presence. In analyzing the attorney’s job duties and experience, the court found that she had never tried cases in court nor taken depositions of witnesses, even though they were two of the functions listed in her job description, during the eight years she worked for the company. It further found out that the job description on which the company relied was based on a twenty year old questionnaire that did not reflect changes in the job that were associated with improvements in technology. It also noted that the requested leave was not indefinite in nature, and, in fact, was only for a ten week period. The court observed, with disapproval, that the company did not engage in the interactive process by sitting down and talking with the employee, and had already made a decision with respect to whether her request for an accommodation would be rejected before even speaking to her.

The lessons of the decision in Mosby-Meachem v. Memphis Light, Gas & Water Division are clear: first, as with any analysis of a request for a reasonable accommodation, the process will be intensely fact specific. It will depend upon the actual duties of the job in question. Second, job descriptions, and, in particular, those which might involve technological processes, must be updated on a regular basis. The questionnaire underlying this particular job was more than twenty years old. Third, if an employer wishes to take the position that physical attendance is an essential function of the job, it must uniformly take that position, at least with the specific job under examination. The company here had not done so. Fourth, it is mandatory that the employer engage in the interactive process with the employee prior to making a decision on the requested accommodation.

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