The Americans with Disabilities Act (ADA) requires that employers engage in an interactive process before the employer can grant or deny any request for a reasonable accommodation. With the state of technological advances across many industries today, requests for telecommuting as an accommodation under the ADA could become more frequent. Employers must be prepared to evaluate a potential reasonable accommodation when requested.

In the recent case of Mosby-Meachem v. Memphis Light, Gas & Water Div., No. 17-5483 (6th Cir. Feb. 21, 2018), the Sixth Circuit Court of Appeals¹ upheld the jury’s determination that an employer violated the ADA, by denying an employee’s accommodation request for a ten-week period of telecommuting.

In Mosby-Meachem, the plaintiff (“Mosby-Meachem”) worked as an attorney for Memphis Light, Gas & Water Div. (“MLG&W”). Despite the fact that the company had implemented a strict attendance policy, many employees telecommuted often, including Mosby-Meachem. After undergoing surgery during an at-risk pregnancy, Mosby-Meachem was placed on modified bed rest, restricting her from engaging in prolonged standing or sitting and from lifting heavy objects. As a result, Mosby-Meachem submitted an accommodation request to the MLG&W to work from home for a ten-week period. The company’s ADA Committee rejected the request, stating “that physical presence was an essential function of Mosby-Meachem’s job, and teleworking created concerns about maintaining confidentiality.” Mosby-Meachem brought suit seeking compensatory relief for failure to accommodate and lost back pay.

The Sixth Circuit Court held that the jury could have found that MLG&W violated the ADA’s duty to accommodate. Mosby-Meachem presented sufficient evidence supporting a finding that she could perform all the essential functions of her job from home for ten weeks without being physically present in the office. Evidence was also presented that the plaintiff’s job description was out of date and “did not reflect changes in the job that have resulted from technological advancements since [the] time [it was established],” and included tasks (such as trying cases and deposing witnesses) that she hadn’t performed in eight years.

In addition, the Court found that, “Mosby-Meachem presented evidence that MLG&W did not in fact engage in an interactive process, but rather had already determined what accommodation it was willing to offer before ever speaking with Mosby-Meachem,” noting that MLG&W’s ADA Committee indicated that they would never grant a telecommuting request regardless of the circumstances.

The case shows that courts are becoming more willing to consider telecommuting as a reasonable accommodation. In 2011, the Second Circuit Court of Appeals held that commuting accommodations, including working from home, may fall within the purview of an employer’s obligations under the ADA. Nixon-Tinkelman v. N.Y. City Dep’t of Health and Mental Hygiene, 2011 U.S. App. LEXIS 16569 (2d Cir. Aug. 10, 2011). The Second Circuit emphasized that the determination of whether an accommodation is “reasonable” must be made on a case-by-case basis and that employers cannot categorically deny requests for an accommodation to work from home or to receive other commuting accommodations.

These holdings highlight the importance the interactive process and that employers must be fully engaged in determining if an accommodation is reasonable. With that in mind, employers should establish a procedure for addressing ADA related requests for telecommuting accommodations. In addition, because a job’s specific requirements will be examined closely in these cases, it is a good idea to regularly review and update job descriptions to fully reflect the current duties. Telecommuting can be deemed to be an appropriate reasonable accommodation, depending on the facts and circumstances of an employee’s job, and whether actual attendance is required.

¹The United States Court of Appeals for the Sixth Circuit is a federal court with appellate jurisdiction over the district courts in the following districts: Eastern District of Kentucky, Western District of Kentucky, Eastern District of Michigan, Western District of Michigan, Northern District of Ohio, Southern District of Ohio, Eastern District of Tennessee, Middle District of Tennessee and Western District of Tennessee.