An Ounce of Prevention with Working from Home ADA Accommodations

September 17th, 2019

ADA-9-17-19.pngEven with a lack of legal clarity, banks can take steps to prepare for work-from-home accommodation requests from employees with disabilities.

Technology now allows banks’ employees to be connected with coworkers and customers nearly anywhere in the world via email, chat, calls or video conferencing. Many banks use work from home, or telecommuting, as a perk to attract and retain talent. But what should a bank do when an employee requests to work from home to accommodate a disability?

Under the Americans with Disabilities Act (ADA), employers are prohibited from discriminating against a qualified individual with a disability. The law considers a disabled person to be a “qualified individual” if they can perform the essential functions of the job, or, if not, whether any reasonable accommodation from the employer would enable that individual to perform those functions.

The ADA accommodation process begins when an employee requests an accommodation. The request can be informal and only needs to clearly communicate that a medical or physical condition interferes with their ability to do their job. After receiving a request, the first step for a bank is to determine whether the employee can perform the position’s essential functions, which are the fundamental duties of the position.

Next, an employer needs to determine if a reasonable accommodation will enable the employee to perform the essential functions. Reasonable accommodations may include making facilities accessible, restructuring the job, modifying work schedules and reassignment, to name a few. The ADA requires, where applicable, modifications or adjustments to the work environment and manner or circumstances under which the job is performed that enable the disabled employee to perform the essential functions of the job.

Employers must engage in an interactive process with the employee to identify the precise limitations resulting from the disability, and any potential reasonable accommodations that could overcome them. While the law does not require any formality during this process, it cannot be given short shrift.

If the employer and employee determine a reasonable accommodation will enable the employee to overcome the limitations imposed by her disability, the final step is to determine the impact of that accommodation on the business. Employers are not required to provide the reasonable accommodation if it would impose an undue hardship the business. Management should consider the nature and cost of the accommodation, overall financial resources of the employer, composition of workforce and impact of the accommodation on the operation of the business in its undue hardship analysis.

Working from home as an accommodation is not a novel concept in the ADA world. The Equal Employment Opportunity Commission referenced working from home as a potential form of reasonable accommodation in its 1999 enforcement guidance on reasonable accommodation; it provided further guidance on telecommuting in 2017. However, the EEOC guidance is informal and not binding, and the federal courts are not necessarily in alignment on the issue.

In Credeur v. Louisiana, the U.S. Circuit Court of Appeals for the 5th Circuit upheld the district court’s ruling that a litigation attorney for the Louisiana Attorney General office was not entitled to a work-from-home accommodation. In the 2017 decision, the court found that regular work-site attendance is an essential function of most jobs, and especially so when the employee works with a team. The court also pointed to an employer’s ability — or inability, in this case — to directly supervise an employee who telecommutes in its decision to deny the accommodation.

Under similar circumstances, the U.S. Circuit Court of Appeals for the 6th Circuit came to the opposite conclusion in its 2018 decision in Mosby-Meachem v. Memphis Light, Gas & Water Div. Mosby-Meachem was an in-house attorney, like Credeur. Memphis LG&W did not maintain a formal telecommuting policy, but the General Counsel had communicated to all in-house lawyers that they were expected to be in the office Monday through Friday, 8:30 a.m. to 5:00 p.m. LG&W denied Mosby-Meachem’s request for a work-from-home accommodation while recovering from a medical condition on the grounds that physical presence in the office was an essential function of her job. A district court jury ruled against LG&W and the 6th Circuit affirmed, finding that Mosby-Meachem’s physical presence in the office was not essential. The court further criticized LG&W for conducting a less-than-effective interactive process.

These cases demonstrate that work-from-home accommodation jurisprudence remains unsettled, and do not provide perfect guidance on how a bank should approach an accommodation request. But there are several steps a bank can take to be better prepared for a work-from-home accommodation request.

  • Prepare job descriptions that are clear, precise and accurate, including whether or not physical presence is essential.
  • Address telecommuting in employment policies and employee handbooks.
  • Be consistent when granting telecommuting privileges to employees (disabled or not), and document decisions to grant or deny.
  • Embark on a serious and thoughtful interactive process with employees after receiving accommodation requests.

In the ADA work-from-home accommodation world, an ounce of prevention is worth a pound of cure.

mdailey

Mike Dailey is a partner at Dinsmore & Shohl and the chair of the firm’s Financial Institutions practice group. He represents financial institutions in all aspects of corporate law, including M&A, regulatory compliance, securities law and corporate governance.

rharrell

Raymond Harrell, Jr. is a labor and employment attorney who focuses his practice on employment litigation. He regularly represents companies in the areas of discrimination, harassment, wrongful termination, wage and hour, deliberate intent, unemployment appeals, unfair labor practice, and general litigation.

apack

Ashley Pack has significant experience representing employers in a variety of labor and employment matters, including employment litigation, sexual harassment investigations, unfair labor practice and union representation cases.