10 Oct The Real Cost of Failing to Accommodate an Employee’s Disability
MASUD LABOR LAW GROUP
By: Brian Boyd
Employers often learn the hard way that the Americans with Disabilities Act (“ADA”) is a decidedly employer-friendly law and requires employers to treat an employee’s disability with care. Employers who flout the requirements of the ADA do so at their own risk and may regret that decision down the road. The employer in Mosby-Meachem v. Memphis Light, Gas & Water Div., 883 F.3d 595 (6th Cir. 2018), suffered the consequences of failing to adhere to the requirements of the ADA.
Andrea Mosby-Meachem worked as an in-house attorney for the Memphis Light, Gas & Water Division (“MLG&W”). Although an email was circulated in 2008, stating that MLG&W attorneys were expected to be at work from 8:30 am to 5:00 pm Monday to Friday, no formal written policy was maintained prohibiting an employee from telecommuting. On January 2, 2013, Mosby-Meachem was hospitalized for complications arising out of her pregnancy and subsequently placed on “modified bed rest.” Mosby-Meachem formally requested an accommodation allowing her to work remotely either from the hospital or from home for the following ten weeks. Two days later Mosby-Meachem submitted documentation from her doctor confirming the same. MLG&W’s ADA committee conducted a process hearing and questioned Mosby-Meachem whether she could perform the essential functions of her job. Despite Mosby-Meachem’s assurances that she could still perform her job remotely, her accommodation request was denied on the grounds that her physical presence was an essential function of her job and generalized confidentiality concerns related to telecommuting. Several appeal attempts were denied in kind. Notwithstanding, Mosby-Meachem continued to work from home up until her baby was born on April 14, 2013. During this time Mosby-Meachem was on a combination of short-term disability and FMLA leave. It was later revealed that Mosby-Meachem’s license to practice law had been suspended from February 26, 2013, until the end of her leave period. Notwithstanding, Mosby-Meachem filed suit alleging, among other claims, that MLG&W failed to accommodate her disability by permitting her to telecommute to work and was awarded a jury verdict in the amount of $92,000.
On appeal to the Sixth Circuit, MLG&W attempted to argue that telecommuting is a “per se unreasonable” accommodation as it did not allow Mosby-Meachem to perform several essential functions of her job that required her to be physically present. In other words, Mosby-Meachem could not make out a failure to accommodate claim because she could not show that she was “otherwise qualified” to perform the job while she was on bedrest. The Court then noted that a job function is essential if its removal would fundamentally alter the position. The question then became whether being physically present in the workplace was fundamental to the actual work performed by MLG&W’s attorneys.
In arguing that physical presence was, in fact, an essential function of Mosby-Meachem’s job, MLG&W relied in large part on an enumerated list of job functions contained in a 20-year-old job description and testimony that there could be emergency situations where the attorney would be called out to give legal advice. On the other hand, Mosby-Meachem countered with evidence that she never made any in-court appearances or conducted depositions in her entire tenure with MLG&W, despite them being listed in the job description. Moreover, other employees testified that Mosby-Meachem could do her job from home and Mosby-Meachem nevertheless continued to work from home in spite of her accommodation request being denied. Ultimately, the court upheld the jury award, relying in large part on the fact that the job description that MLG&W based its decision on was outdated and no longer accurately represented the actual work being performed by the employees on a daily basis.
Having upheld the jury award, the Court then turned its attention to the fact that MLG&W failed to engage in the interactive process. The Court emphasized the fact that MLG&W had already determined what accommodation it was willing to offer before ever speaking to Mosby-Meachem. Importantly, MLG&W had already decided that it would not even consider telecommuting “no matter what the circumstances.” Consequently, the Court found that MLG&W independently violated the ADA by failing to engage in the interactive process to determine whether the proposed accommodation was reasonable.
Mosby-Meachem underscores the importance of maintaining accurate job descriptions and adhering to the requirements of the ADA. MLG&W’s defense failed in large part because it had relied on an outdated job description that did not reflect the actual on-the-ground work being performed by the employee. Had MLG&W updated their job descriptions and engaged in the interactive process, they could very well have avoided the fate handed down to them by the courts. Significantly, these damages were upheld notwithstanding the fact that Mosby-Meachem lost her bar license while on leave and was not even legally capable of performing her job during this time. Going forward, employers should take extreme care when dealing with requests for disability accommodation as one wrong move could end up costing an employer untold sums of money.
Please contact the Masud Labor Law Group should you have any questions regarding the interactive process or any other aspect of the ADA.