Teleworking Can Be an ADA Accommodation

​The 6th U.S. Circuit Court of Appeals affirmed a $92,000 verdict and a $18,184 back-pay and benefits award under the Americans with Disabilities Act (ADA) for a lawyer at a city utility who was denied her request to telework during her 10-week bed rest for pregnancy complications.

The plaintiff was an in-house attorney for a Memphis Light, Gas and Water division (MLGW). She started at MLGW in 2005. As an in-house attorney, her work focused primarily on the areas of labor, employment and workers' compensation. She never participated in a trial during her eight years with MLGW prior to the initiation of her litigation.

In 2008, a new vice president and general counsel for MLGW became the plaintiff's supervisor. On March 14, 2011, the new general counsel sent an e-mail to all lawyers in the legal department requiring they spend the hours of 8:30 a.m. to 5:00 p.m. in the office each day. Although MLGW did not maintain a formal written telecommuting policy at that time, in practice, employees often telecommuted. On one occasion in 2012, the plaintiff was permitted to work from home for two weeks while she recovered from neck surgery, during which time she appears to have adequately performed her duties to the satisfaction of MLGW.

On Jan. 2, 2013, during her 23rd week of pregnancy, the plaintiff was hospitalized. Following surgery, the plaintiff's doctors placed her on modified bed rest for approximately 10 weeks, during which time she was restricted from engaging in prolonged standing or sitting and lifting heavy objects. Upon receiving these instructions from her doctors, the plaintiff called and informed her boss of her diagnosis.

On Jan. 7, the plaintiff made an official accommodation request that she be permitted to work from either within the hospital or within her home for 10 weeks. Two days later, she submitted documentation supporting her request, including a letter from her doctor approving her to work from the hospital or home.

The ADA committee denied the plaintiff's request on Jan. 18 and, in a letter dated Jan. 30, explained that the denial was based on the determination that physical presence was an essential function of the plaintiff's job, and teleworking created concerns about maintaining confidentiality. From the time the plaintiff submitted her request on Jan. 7 until she received the denial letter, the plaintiff continued to perform her work remotely, and no one from MLGW ever told her to stop working during this time.

Following 10 weeks of restriction, the plaintiff returned to work up until her baby was born on April 14, 2013. During the time between Jan. 3 and her return to work on April 1, the plaintiff received sick leave under the Family and Medical Leave Act for four weeks and then subsequently received short-term disability for the remainder of the period.

The plaintiff filed a lawsuit for pregnancy discrimination, failure to accommodate and retaliation under the ADA. MLGW moved for summary judgment, which was denied. The case proceeded to trial and, after MLGW filed a motion for judgment as a matter of law, the jury returned a verdict for the plaintiff under the ADA, awarding her $92,000 in compensatory damages. The jury found no pregnancy discrimination, and the court denied MLGW's motion for judgment, awarding the plaintiff $18,184.32 for back pay and lost benefits.

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On appeal, MLGW argued that the plaintiff's requested accommodation to telework was unreasonable because it removed several essential functions of her job that could be performed only in person. MLGW relied upon trial testimony concerning the nature and duties of the position and the 6th Circuit's prior decision in EEOC v. Ford Motor Co., which stated that most jobs require in-person attendance as an essential function of the position.

The plaintiff countered with uncontested testimony that in her eight years of employment at MLGW, she had never tried cases in court or taken depositions of witnesses, even though those duties were listed in her position description. The appeals court agreed and found that its decision in the Ford case was distinguishable, as the plaintiff in that case was unable to perform her duties due to high absenteeism and an extensive history of poor performance. Unlike the Ford case, the plaintiff showed that she was adequately performing her duties at MLGW by teleworking, as her job duties were not tied to her presence in the office.

As a result, the appeals court rejected MLGW's arguments on appeal and upheld the judgment.

Mosby-Meachem v. Memphis Light, Gas & Water Division, 6th Cir., No. 17-5483 (Feb. 21, 2018).

Professional Pointer: Some workplaces have changed since the 6th Circuit's 2015 decision in Ford Motor Co. that, for most workplaces, personal attendance is an essential function of the job. More courts now recognize that employers can be required to allow teleworking as an ADA reasonable accommodation given the prevalence of teleworking policies in many industries.

Jeffrey Rhodes is an attorney with Doumar Martin in Arlington, Va.

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