Labor & Employment Law Daily Pregnant employee denied partial remote work schedule advances ADA failure-to-accommodate claim
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Monday, December 7, 2020

Pregnant employee denied partial remote work schedule advances ADA failure-to-accommodate claim

By Kathleen Kapusta, J.D.

Her complications were not those experienced in a normal pregnancy and there was evidence they substantially limited major life activities.

A pregnant employee, who was not allowed to work at home two to three day a week even though her doctor had advised her to rest and limit her activity after having been hospitalized with complications, can proceed to trial on her ADA failure-to-accommodate claim. Her complications, including vaginal bleeding, posterior/interior possible bilobed placenta that was low lying, and a history of large second trimester bleeding, were not those experienced in a normal pregnancy and constituted an impairment, observed a federal district court in Maryland, and there was evidence they substantially limited major life activities for the duration of her pregnancy. Denying in part her employer’s motion for summary judgment, the court also found fact disputes as to whether she could have performed her job responsibilities on a partial work-from-home schedule (Kande v. Dimensions Health Corp., December 2, 2020, Hazel, G.).

Rest. About a month after she told her supervisor she was five months pregnant; the employee was admitted to the hospital for excessive vaginal bleeding and cramping. Discharged two days later, she was diagnosed with “low lying placenta” and a “marginal cord insertion” and encouraged by her doctor to rest. Because she could not afford to take time off from work, her doctor provided her with a note for her employer stating that he had advised her to rest at home and limit her activity.

Hospital trips. The employee provided the note to her supervisor and the department director and asked, as an accommodation for her pregnancy, to work from home two to three days a week. A couple of weeks later, she submitted a request to HR for FMLA leave, again seeking to work from home two or three days a week. The following month, while at work, she began bleeding profusely and was rushed to the hospital where she learned she had suffered an abruption. A week later, she again went to the hospital due to heavy bleeding. Several days later, she was placed on bed rest. She gave birth 10 days after that, three weeks before her estimated due date.

When she returned to work, she learned that her supervisor, who was nine months pregnant, had been approved to work from home for a week before beginning her maternity leave. She complained to HR and the supervisor’s permission to work remotely was revoked and the employee was provided with 144 hours of paid time off credit. She subsequently sued for failure to accommodate and disability discrimination.

Disabled? At issue in her failure-to-accommodate claim was whether her pregnancy complications were a disability under the ADA. While the Fourth Circuit has not yet decided this issue, the court here noted that although pregnancy itself is not a disability, the employee could state a claim under the ADA if she could show her associated complications were impairments that substantially limited major life activities.

Complications. And here, not only did she have vaginal bleeding, posterior/interior possible bilobed placenta that was low lying, and a history of large second trimester bleeding, she had been diagnosed with a marginal cord insertion, she was of advanced maternal age, and she went to the ER for a hemorrhage at 24 weeks. These conditions, observed the court, increased the chance of the placenta detaching from the cervix—an abruption—which could be fatal to the fetus. Because these were not normal pregnancy complications, they constituted an impairment.

Major life activities. In addition, said the court, the employee sufficiently established that her impairment substantially limited major life activities and thus she was disabled under the ADA. She faced an increased risk of abruption and her doctor testified that given her complications, resting at home was medically required. Decreased activity was also necessary to avoid increasing abdominal pressure, which could trigger an abruption and the potential loss of her child.

This cannot be the law. Although her employer argued that the employee’s “actual performance of her job after requesting to work from home belies any assertion that she was in fact substantially limited in a major life activity,” the court pointed out that she suffered an abruption while at work that required her to go on full bed rest, and she ultimately delivered her baby three weeks before her estimated due date. Thus she “most certainly did not work ‘without issue.’” Further, the court stressed, “Taking into account whether a plaintiff actually worked without incident after the denial of an accommodation would allow defendants to deny coverage to employees and avoid liability so long as the employees continued to work and did not actually suffer the health consequences for which they are at risk. This cannot be the law.”

Workplace barriers. Next, the employer argued, the employee requested to work from home because of her commute, which was not an essential job function and did not need to be accommodated. While an employer is not required to eliminate barriers outside the workplace that make it more difficult to get to and from work, the employee requested an accommodation because she needed to rest at home and limit activity, not just due to the sole issue of driving. According to her doctor, “rest at home” meant “stay at home, don’t do anything, heavy lifting, pushing, pulling.” And by limited activity, he meant no “carrying groceries, no going shopping, no going outside the home.” While the employee testified that “resting was a major thing, so avoiding the drive back and forth to work would alleviate some of the stress that I exert on my body,” that did not suggest she believed her only barrier to working was her commute, but rather that avoiding driving was one component of the broader need to rest.

Medical necessity. Also rejected was the employer’s assertion that working from home was not medically necessary and thus was not reasonable. Her doctor testified that he believed it was medically required that she rest at home and that decreased activity was necessary to avoid increasing abdominal pressure and triggering an abruption.

Essential functions. As to the employer’s contention the employee could not perform the essential functions of her job working two to three days at home, the employee presented evidence she had worked from home in the past on multiple occasions and her supervisor testified that she could perform certain tasks from home and had done so. Although the employee admitted she could not perform a physician technical training from home, she argued that she had only performed the training 10 times for 30 minutes in her entire time in the job and her supervisor and another coworker were also responsible for the trainings.

Partial work-at-home schedule. Her supervisor and department director testified that they were unsure whether the employee could perform her job’s essential functions at home but this, said the court, did not resolve fact disputes as to whether she could perform her responsibilities on a partial work-from-home schedule. Moreover, an HR vice president testified that the employee’s request was never denied but rather was still under consideration.

While the employer pointed to technical support and training and quality management of data tasks it claimed could not be performed remotely, the employee presented evidence that she in fact coordinated a lot of technical work by phone and that she had performed quality management of data tasks remotely in the past. As to the training, the court found a fact dispute as to whether the physician trainings were essential functions of her job that could not have been reasonably accommodated by a partial remote work arrangement. Thus, summary judgment was denied as to her failure-to-accommodate claim.

Disability discrimination. The court dismissed her disability discrimination claim, however. Although the employee alleged she received less favorable treatment than did her supervisor, she failed to show they were similarly situated. They had different positions and there was no evidence they had similar job responsibilities.

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