Two months ago, the Sixth Circuit Court of Appeals held in Mosby-Meachem v. Memphis Light, Gas & Water Division, 883 F.3d 595 (6th Cir. 2018), that in certain circumstances telecommuting may be considered a reasonable accommodation under the Americans with Disabilities Act (ADA). However, back in 2015, the court held that telecommuting was not a reasonable accommodation in EEOC v. Ford Motor Company, 782 F.3d 753 (6th Cir. 2015).
So which is it? If an employee proposes telecommuting as a reasonable accommodation, do you have to grant the request? It depends . . .
The plaintiff in Mosby-Meachem was an in-house attorney for a utility company. Her doctor ordered bedrest for the final ten weeks of her pregnancy, so the plaintiff asked her employer for a telecommuting accommodation for this period. Her employer’s ADA Committee denied her request, claiming that she could not perform the essential functions of her job while telecommuting. Potentially problematic job functions included trying cases, deposing and interviewing witnesses, and supervising other employees. But in the eight years prior to her request, she had never tried a case nor deposed a witness. Additionally, she had previously teleworked without incident for two weeks while recovering from a neck surgery and three weeks while awaiting the ADA Committee’s decision on the request at issue. Indeed, other employees testified that the plaintiff could perform all essential functions of the job outside the office. Finally, although her employer had no teleworking policy in place, several employees worked from home.
The plaintiff in Ford was a resale buyer who suffered from irritable bowel syndrome. Ford’s HR department denied the plaintiff’s request to telecommute four days a week, concluding that, under her proposal, the plaintiff could not effectively perform certain essential job functions. Ford’s resale buyers must interact face-to-face, work closely with customers and co-workers, and have immediate access to information kept only at the workplace. Prior to her request, her supervisors adjusted her schedule three times in an attempt to establish regular and predictable attendance. Additionally, although other resale buyers telecommuted, they did so on a set schedule no more than two days per week and came into work if necessary. The court held that because regular and predictable attendance was an essential function of a resale buyer, telecommuting was not a reasonable accommodation.
The two cases are starkly different. Ford’s plaintiff had an extensive history of poor performance and high absenteeism, whereas Mosby-Meachem’s plaintiff performed her duties without attendance issues or a decline in work-product quality. Ford’s plaintiff requested to telecommute indefinitely; Mosby-Meachem’s plaintiff requested the accommodation for only ten weeks. Finally, and most critically, Ford’s plaintiff could not perform her essential job functions while telecommuting; Mosby-Meachem’s plaintiff could.
Sometimes telecommuting may be a reasonable accommodation. To make an accurate determination, employers must consider every request on a case-by-case basis, engage in an interactive process with the requesting employee, analyze the essential job functions, and review and update job descriptions on a regular basis. Remember, the more time an employee spends performing a job function, the more likely it is that that function is essential.
If you receive a request for a reasonable accommodation, your Warner attorneys can help you navigate the interactive process and ADA compliance.