Labor & Employment Law Daily HUD’s alternative, non-telecommuting accommodations of modified schedule, time for therapy were reasonable
Tuesday, August 20, 2019

HUD’s alternative, non-telecommuting accommodations of modified schedule, time for therapy were reasonable

By Joy P. Waltemath, J.D.

Full or part-time telecommuting wasn’t the only reasonable accommodation, just the accommodation the HUD attorney wanted.

Agreeing with a district court that no reasonable jury could find that HUD failed to accommodate the medical needs of one of its attorneys after she had carpal tunnel surgery, the Seventh Circuit affirmed the dismissal of her failure to accommodate and retaliation suit under the Rehab Act. The fact that the agency refused to provide her requested accommodation—periods of full-time working from home or at least several days a week—did not mean that its offered alternative accommodations were unreasonable or ineffective. In fact, the attorney lacked evidence that HUD’s offer of a modified work schedule and flexibility in leave for her therapy sessions did not fully address her medically documented needs to avoid commuting during rush hour and continue therapy (Yochim v. Carson, August 15, 2019, Scudder, M.).

Attorney wants full-time work from home. A HUD attorney for 26 years had taken “full advantage” of HUD’s work-from-home policy permitting employees to work from home several days per week. After she had carpal tunnel surgery in November 2012, she asked for time off and to work from home, to which HUD agreed in part. However the employer was beginning to restructure its law department, which required less specialization, more cross-training, and a team approach necessitating more time in the office. The attorney began asking to work from home during January 2013 as an accommodation for her inability to use her right hand during her commute on crowded trains and to manage physical therapy appointments. She renewed her accommodation requests on several occasions, which HUD either granted or offered alternative options that addressed her needs—but she did not get to work from home to the extent she desired.

Seeks it as a reasonable accommodation. In fact, her telework privileges were revoked in June 2014 because of performance deficiencies after the legal team’s docket was audited and her failure to complete certain tasks was discovered. In August 2014, she tried again to work from home three days a week as an accommodation, which was denied. Eventually, when she became eligible she retired and filed suit. The district court denied summary judgment, finding the only accommodation she was refused was her request to work at home all the time; there is no requirement for an employer to allow an employee to work full time at home; and the accommodations HUD offered were reasonable.

HUD offers alternative accommodations. The Seventh Circuit affirmed, holding that no rational jury could find that HUD failed to offer the attorney reasonable accommodations or engage in the interactive process in good faith. HUD either granted each of the attorney’s requests or responded with a list of alternative options that reasonably addressed her needs. “This is not a case where an employee’s requests for accommodations fell on deaf ears,” stressed the appeals court, noting that the parties engaged in a meaningful back-and-forth. And simply because the attorney did not get the accommodations she requested did not mean that the communication process had broken down.

Some days of telework allowed. Specifically, beginning immediately after the attorney’s surgery, HUD granted her request to telework for the days in December 2012 that she had not already requested off. It allowed her to adjust her work hours (for an easier commute) and to telework two days a week for the entirety of January. She wanted to work from home all of January 2013—but HUD was not required to provide her preferred accommodation, only a “reasonable accommodation.” The medical basis for the attorney’s accommodation request was her surgeon’s concern about her commute and her need to attend physical therapy appointments. However, HUD had restructured her department and updated her job description, focusing on cross-training, teamwork, and collaboration, which necessarily required her presence in the office. As such, HUD’s accommodations, which adjusted her work hours to avoid rush hour and limited her time in the office, were entirely reasonable.

Privileges revoked for performance reasons. In August 2014, after her work-from-home privileges were revoked for performance reasons, the attorney asked to work from home three to five days per week for six months as an accommodation. In response, HUD offered her a four-day work week, generous leave approval (to ease commuting and attending physical therapy), and other accommodations, “mindful,” said the Seventh Circuit, that although she was medically cleared for work, she had ongoing needs for physical therapy. “No reasonable jury could find this response unreasonable,” reiterated the appeals court, pointing out that the attorney never explained why HUD’s approval of regular sick leave to attend physical therapy appointments was inadequate, or why she could not attend therapy appointments close to her office to minimize her commute, or why changes to her work hours would not address her concern about crowded trains.

Alternatives were reasonable. It was the attorney’s own insistence on teleworking three or more days a week and her refusal to accept anything less that doomed the interactive process. She had not shown that the two accommodations she sought but was denied—to work from home full-time for one month and later for three to five days per week for six months—were reasonable. Merely pointing to a period in 2004 that she had worked from home for six weeks did not change the realities of the 2012 restructuring of the legal department, which required attorneys to work collaboratively in teams, or the fact that her reported performance deficiencies cost her the work-from-home privilege.

Not “ineffective.” The attorney also claimed HUD’s accommodations, like the compressed work week and flexible telework on occasion, already were widely available to HUD employees without a reasonable accommodation request and thus were not effective “alternative accommodations. But a reasonable accommodation includes “modified work schedules” like those offered, and it didn’t matter to the court that modified scheduling options were available to other HUD employees.

Her medical records supported only limiting her commute (not eliminating it entirely) by avoiding crowded trains that could cause her to fall or grip the railings—and HUD’s proposed accommodations effectively addressed these limitations through a schedule that avoided rush hour. While she claimed the alternative compressed schedule with 10-hour days limited her flexibility to make therapy appointments and required sick leave, she provided no evidence that her sick leave restriction—which merely required her to submit a medical note detailing the time and date of an appointment—interfered with her therapy sessions.

Hostile work environment. As to her claim that HUD’s alternative accommodations created a “retaliatory hostile work environment” that led to her premature retirement, the question of whether the ADA or Rehab Act encompasses hostile work environment claims was unresolved by the Seventh Circuit. But even if she could bring such a claim, she had not shown that her leave and telework restrictions—which were permissible employer actions—were objectively and subjectively hostile and so severe or pervasive that they would be actionable.

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