Employment Law Daily Telecommuting for 10 weeks could be reasonable accommodation for in-house attorney
Friday, February 23, 2018

Telecommuting for 10 weeks could be reasonable accommodation for in-house attorney

By Kathleen Kapusta, J.D.

Despite some evidence showing that in-person attendance was an essential function of an in-house attorney’s job, the Sixth Circuit found she sufficiently established she could perform the essential functions of her job remotely. Further, said the court, affirming the district court’s denial of her employer’s post-trial motions, a rational jury could conclude she was a qualified employee and that working remotely for 10 weeks while she was on bed rest during her pregnancy was a reasonable accommodation. The court rejected the employer’s argument that because her license to practice law had been administratively suspended for part of that time, she was not qualified for her job and therefore was not entitled to receive back pay. The possible unlicensed practice of law, observed the court, would be an issue for the state bar, and the appropriate remedy would be discipline imposed by that body, not disgorgement of her salary to her employer (Mosby-Meachem v. Memphis Light, Gas & Water Division, February 21, 2018, Gibbons, J.).

During her eight years as an “Attorney 3″ for the utilities company, the employee, who worked primarily in the areas of labor, employment, and workers’ compensation, never participated in a trial. In 2011, the company’s general counsel sent an email to all attorneys in the legal department reminding them that they were required to be in the office from 8:30 a.m. until 5:00 p.m. Monday through Friday. Despite this, however, the company often allowed employees to telecommute and in 2012, the employee worked at home for two weeks while recovering from neck surgery.

Accommodation request. In January 2013, the employee, who was pregnant, was placed on modified bed rest following surgery. Although she requested as an accommodation that she be allowed to work from her bed in the hospital or her home for 10 weeks, her request was denied by the company’s ADA Committee, which found that physical presence was an essential function of her job and that teleworking created concerns about maintaining confidentiality. From the time of her request on January 7 until she received the denial on January 30, she continued to work remotely, however.

Following her 10 weeks of bed restriction, she returned to work on April 1, and she continued to work up until her baby was born two weeks later. During the time between January 3 and her return to work on April 1, she initially received sick leave under the FMLA for four weeks and then subsequently received short-term disability for the remainder of the period.

License suspension. From February 26, 2013, until the end of the accommodation period, her license to practice law was suspended for failure to pay the annual registration fee. When she learned about the issue in June, however, she paid the fee. Despite the suspension, she was fully compensated upon her return to work in April.

Lower court proceedings. She subsequently sued her employer for pregnancy discrimination in violation of state law and disability discrimination in violation of the ADA. The case proceeded to trial and the jury returned a verdict for the employee on her ADA claim, awarding her $92,000 in compensatory damages. The company’s motions for judgment as a matter of law or for a new trial were denied. The lower court, however, granted the employee’s motion for equitable relief based on lost pay and her forced use of sick leave, which the company opposed on the grounds that she was suspended from practicing law during a portion of this time and was thus legally disqualified from doing her job.

In-person attendance. On appeal, the company first argued that the employee’s own testimony, the written description of the Attorney 3 position, and testimony from former employees conclusively established that physical presence was an essential function of her job. This evidence, it asserted, along with the Sixth Circuit’s decision in EEOC v. Ford Motor Co., which stated that “[r]egular, in-person attendance is an essential function—and a prerequisite to essential functions—of most jobs, especially the interactive ones,” precluded a reasonable jury from finding she was “otherwise qualified” from performing her job while she was on bedrest.

Conflicting evidence. There was some evidence, said the court, supporting a finding that in-person attendance was an essential function of the employee’s job—including an enumerated list of essential functions in the Attorney 3 job description, the employee’s testimony that the first nine of those functions were in fact essential (although she also testified that they could be performed remotely), and the testimony of former Attorney 3s about the need to be physically present in the office.

Dated job description. But citing the deference it affords a jury verdict, the court found the employee established that she could perform all the essential functions of her job remotely for 10 weeks. Specifically, there was testimony from other attorneys, as well as outside counsel, indicating the employee could perform all essential functions during the 10-week period working from home. The employee had never tried cases in court or taken depositions of witnesses, two functions listed in the Attorney 3 job description, during the entire eight years she had worked for the company. The job description on which the company relied was based on a 20-year-old questionnaire that did not reflect changes in the job that have resulted from technological advancements since that time.

Sixth Circuit precedent. Nor did its decision in Ford preclude such a finding, said the court, noting that in Ford, the plaintiff had an extensive history of poor performance and high absenteeism, some of which stemmed from her Irritable Bowel Syndrome, requiring other employees to cover for her. Here, in contrast, the employee had performed her duties remotely in the past without any attendance issues or decline in work product, and her requested accommodation—teleworking for a limited 10-week period—was significantly different from that of the Ford plaintiff, who sought to work off-site up to four days a week indefinitely and on an indeterminate schedule.

Limited duration. The court also cited to its decision in Williams v. AT&T Mobility Services LLC, in which it held that attendance was an essential job function for a call center employee who had to be physically present at her work station and logged into the computer to receive customer service calls. Here, however, the employee was not tied to her office desk, and she had already demonstrated her ability to work remotely without issue. Further, her disability—and corresponding accommodation—was for a limited time rather than an indefinite period.

Teleworking not expressly precluded. Although it observed in Ford that in-person attendance is an essential function of “most jobs,” it had not expressly precluded teleworking in all cases, said the court, pointing out that what constitutes an essential function is highly fact specific. “Accordingly,” the court stated, “because the Ford and Williams cases leave open the possibility of teleworking as a reasonable accommodation, particularly for a finite period of time, a jury could have reasonably concluded from the evidence presented at trial” that the employee could perform all the essential functions of her job remotely for 10 weeks.

No interactive process. Rejecting the company’s contention that it should nevertheless be granted judgment as a matter of law because it offered the employee an alternative reasonable accommodation in the form of sick leave and short-term disability, the court noted evidence that the company did not engage in an interactive process but rather had already determined what accommodation it was willing to offer before ever speaking with the employee. This evidence included the testimony of a member of the ADA Committee who stated that the company president “sa[id] nobody can telecommute” and that the general counsel had “said no already.” Accordingly, the district court did not err in denying the company’s motion for judgment as a matter of law.

New trial. Nor did the lower court err in denying the company’s motion for a new trial, said the appeals court, finding unpersuasive its argument that the trial was otherwise unfair because the jury was prejudiced by the employee’s “flaunting” her expertise in ADA matters; the jury verdict form did not properly frame the relevant analysis; and the district court erroneously excluded evidence regarding the lack of financial hardship the employee suffered as a result of being forced to take paid leave.

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