Blanket Prohibitors Beware: When Telecommuting or Remote Work May Be a Required Disability Accommodation

The U.S. Court of Appeals for the Sixth Circuit has unequivocally weighed in: failure to permit an employee to telecommute or work remotely as a disability accommodation may violate the Americans With Disabilities Act (“ADA”).

To date, employers in the Sixth Circuit have relied heavily on language in a prior Sixth Circuit decision in EEOC v. Ford Motor Co., 782 F.3d 753 (6th Cir. 2015), in which the court stated that “[r]egular, in-person attendance is an essential function—and a prerequisite to essential functions—of most jobs, especially the interactive ones.” Id. at 762-63 (emphasis added). But just last week, a panel of the Sixth Circuit, in a published decision, affirmed a jury’s award of $92,000 in compensatory damages to an employee who was denied the right to work from home for the last 10 weeks of her pregnancy while on bedrest. In Mosby-Meachem v. Memphis Light, Gas & Water Division, No. 17-5483 (Feb. 21, 2018), the Court held that the employer was not entitled to judgment as a matter of law at trial because the jury reasonably concluded that the employee was “otherwise qualified to perform her job from home for ten weeks without being physically present in the office.” Slip Op’n at 8.

There are several key takeaways from the ruling that should guide employers facing ADA accommodation scenarios going forward:

1. Blanket prohibitions on telecommuting do not excuse liability where an employee qualifies for a telecommuting or remote work accommodation. Similarly, the employer’s outright prohibition against telecommuting will not excuse the requirement to engage in an interactive process. And while an employee still does not have a right to elect his or her accommodation, in a situation wherein an employee is on bedrest but can perform the job from home, the accommodation is probably required as a result of this decision.
2. Necessary length of the accommodation may be relevant to whether the accommodation is “reasonable.” Even though Mosby-Meachem could not perform all of her listed job requirements from home, she could perform most of them for the limited time period at issue. The Court also took note of evidence that Mosby-Meachem had never performed some of the listed job functions—such as trying cases and taking depositions—further undermining any argument that those were essential functions for the mere ten weeks she would be telecommuting. Put another way, if the employee can perform the essential job functions for the necessary length of the accommodation, the accommodation is reasonable.
3. Employee performance matters in the telecommuting realm. Unlike the employee in the Ford case referenced above, the evidence overwhelmingly established that Mosby-Meachem had performed her job well—even remotely—in the past, “with no attendance issues or decline in work performance.” Slip Op’n at 10. So, while remote work may not be a “reasonable” accommodation for an employee with a history of attendance or integrity issues, that is not the case for an employee with a strong record.

Telecommuting and remote work is a hot topic to say the least, with employers across the country revisiting or considering creating pro-employee policies as a means of employee recruitment or retention. But telecommuting may be an issue for all employers qualifying under the ADA (those with 15 or more employees), whether they view it as a positive policy decision or not.

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The information contained on this blog is not legal advice, nor does this blog create an attorney-client relationship. Klein Bussell attorneys do not blog about pending matters handled on behalf of our clients and will never disclose client confidences.