Lawyer Wasn’t Entitled to Full-Time Telecommuting

 

By Jeffrey Rhodes November 13, 2018
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​A federal district court upheld the U.S. Department of Housing and Urban Development's (HUD's) denial of a full-time teleworking request by an attorney with carpal tunnel syndrome.

The plaintiff worked as the primary procurement attorney for HUD for 15 years. During that time, she experienced carpal tunnel syndrome in both hands, ultimately resulting in surgery to her right hand in November 2012.

In October 2012, HUD's Office of General Counsel underwent a restructuring to require attorneys to develop skills across a range of legal fields, with the intent to move away from specialization. HUD created a new position, associate regional counsel, to supervise a team of trial attorneys across multiple areas of litigation. The plaintiff applied for the position, but it was given to someone else who became her direct supervisor. The plaintiff filed an equal employment opportunity complaint with HUD, contending that she was discriminated against based on age.

After the plaintiff's November 2012 surgery, HUD made several efforts to reasonably accommodate her condition under the Rehabilitation Act. Under HUD policies, if an offer of accommodation is rejected by the employee, the rejection is automatically reviewed by HUD's Reasonable Accommodations Branch (RA Branch).

During the month of January 2013, the plaintiff was permitted to work from home one to two days a week and to take leave on the days she was scheduled to be in the office. She requested full-time teleworking as an accommodation but was denied. Instead, HUD offered a variety of alternative accommodations, including a compressed schedule of four 10-hour days, two by telework at home and two at the office, and the ability to set her start and stop schedule to avoid rush hour commuting.

In February 2013, the plaintiff sought to change her telework days, but the request was refused. In March 2013, the plaintiff requested that she be allowed to work full time at home until at least June 30, 2013. She submitted reports from her surgeon and her primary-care physician stating that her right hand was not strong enough for her to commute by train. The plaintiff was advised that, while her second request was pending, she was not approved to work full time at home and sick days would not be approved on days she was able to work but only willing to telework.

On April 4, 2013, the plaintiff's request for accommodation was partially approved. She was offered voice recognition software, a compressed schedule, three days of telework a week and the right to leave 15 minutes early to facilitate her access to a convenient train. This decision was classified as a denial, however, which automatically triggered a review by the RA Branch. The RA Branch offered the plaintiff permission to work from home for two hours in the mornings to avoid the rush hour. She accepted this accommodation.

In August 2013, the plaintiff sought an additional two days of telework a week due to pain, medical appointments and recovery. This request was denied, but she was offered a variety of alternative accommodations.  The plaintiff disagreed with the denial, but didn't follow the procedures to obtain a reconsideration.

The associate regional counsel conducted a leave audit that led to leave restrictions on the plaintiff. The associate regional counsel issued an official reprimand to the plaintiff in June 2014, which resulted in the suspension of her telework status, and suspended the plaintiff without pay for one day in December 2014.

The plaintiff filed a discrimination complaint alleging that HUD failed to reasonably accommodate her disability, harassed her based on her disability, and retaliated against her under Title VII of the Civil Rights Act of 1964 and the Rehabilitation Act, which prohibits the federal government from discriminating based on disability. HUD moved for summary judgment, claiming that the plaintiff was reasonably accommodated by the agency for her medical condition.

[SHRM members-only toolkit: Accommodating Employees' Disabilities]

The court agreed, finding that the plaintiff did not have an entitlement to full-time telework under the law. The court noted that the restructuring of the plaintiff's office showed the need for the plaintiff to be present in the office to interact with attorneys of other disciplines at HUD.

Yochim v. Carson, N.D. Ill., No. 16-CV-04926 (Oct. 23, 2018).

Professional Pointer: With technological improvements, courts increasingly find teleworking, including full-time teleworking, to be a reasonable accommodation. However, if essential duties of a position require attendance in the office or if an employee's full-time teleworking would create an undue hardship for the employer, the request may not be reasonable.

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

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