Saturday, February 24, 2018

Mosby-Meachem v. Memphis Light, Gas & Water: When does it violate the Americans with Disabilities Act to deny an employee with a disability the opportunity to telework?

In Mosby-Meachem v. Memphis Light, Gas, & Water Division, the Sixth Circuit affirmed a jury verdict that the defendant violated the Americans with Disabilities Act by not allowing Andrea Mosby-Meachem, an in-house attorney, to telework while she was on doctor-ordered bed rest during the final 10 weeks of her pregnancy. Although the defendant contended that in-person attendance was essential for effective job performance, Mosby-Meachem presented contrary evidence. For instance, although some functions listed in her job description, including trying a case in court and taking depositions, clearly could not be performed at home, she had never performed those functions during the eight years she had worked for the defendant. The court distinguished its prior decision in EEOC v. Ford Motor Co., 782 F.3d 753 (6th Cir. 2015), rejecting a resale buyer's claim that the defendant violated the ADA by not allowing her to telework. In Ford, the plaintiff asked to work off-site up to four days a weeks for an indefinite period and on an indeterminate schedule, and there was evidence that she had a history of unsatisfactory job performance. By contrast, Mosby-Meachem wanted to telework for a specific 10-week period, and she had previously worked from home without issue. 

Although the court recognized that teleworking can be a reasonable accommodation, it left a significant issue unresolved. Instead of allowing Mosby-Meachem to telework, the defendant granted her the alternative accommodation of allowing her to take sick leave and short-term disability leave. The Sixth Court's decision provides little guidance as to when leave would constitute a reasonable accommodation even though an employee has requested the right to telework. The court determined that the defendant had waived that argument but nonetheless rejected it on its merits, concluding that the jury could have found that the leave accommodation was not reasonable because the defendant had failed to engage in an interactive process to discuss Mosby-Meachem's limitations and possible accommodations.

From my perspective, this analysis leaves much to be desired. Whether the defendant engaged in the interactive process seems to be beside the point. Either leave was a reasonable accommodation or it wasn't. I don't see why the defendant's alleged failure to engage in an interactive process would be relevant to this determination. There's no question that leave can be a reasonable accommodation if an employee cannot do her job, but how about where, as here, an employee can do her job if allowed to telework and that's the accommodation she prefers? By being forced to take leave, Mosby-Meachem may have incurred a loss of income and been required to use sick leave that she otherwise could have saved for a future illness. On the other hand, even if Mosby-Meachem could have performed her job satisfactorily from her home, the defendant might have reasonably felt that the work could have been performed more effectively in the office by someone else.

The district court concluded that the question of whether the defendant's offered accommodation was reasonable was a jury question. I'm not so sure it's that simple. Perhaps the offer of leave was per se unreasonable if teleworking allowed Mosby-Meachem to perform her job satisfactorily and disadvantaged her less than taking leave. Or perhaps the leave offer was per se reasonable because it allowed her to get the bed rest she needed and then return to work without penalty. But even if there was no bright-line rule, what considerations should have guided the jury's determination?

Unfortunately, the court of appeals did not even acknowledge these issues. In the end, then, we know that an employee might be able to establish that teleworking is a reasonable accommodation, but we don't know whether an employer's alternative offer of leave would be sufficient to satisfy its accommodation obligations.

This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.