Jottings By An Employer's Lawyer

Tuesday, January 13, 2004

No Per Se Rule Against Working At Home As A Reasonable Accommodation, But Unlikely - Including This Case

The ADA can present some touching circumstances, and this is one. A former postal worker who witnessed the murder of several of her fellow postal employees in the so called Edmond Post Office massacre, developed post traumatic stress syndrome and was no longer able to work for the Postal Service. She was subsequently employed as a service coordinator for Avaya working out of a call center in Oklahoma City. At the center, although not in her presence, a co-employee pulled a knife on a fellow worker. After learning of the incident, she continued to work as long as he was suspended but when he was allowed to return to work she called in sick. When the company refused her request to relocate the knife pulling employee and she remained unable to return to work after a year, she was administratively terminated. She sued under the ADA claiming that a reasonable accommodation would have been to allow her to work at home. The 10th Circuit engaged in a detailed survey of cases under the ADA involving a request to work at home, almost all of which have been unsuccessful, and concluded here as well it was not a reasonable accommodation since she could not perform the essential functions of her position from home. Mason v. Avaya Communications, Inc. (10th Cir. 1/13/04).

Primarily, the court found that she could not be adequately supervised and could not perform the 'teamwork' aspects of the job, such as covering for fellow employees in what she recognized as a sometimes hectic work environment. One thing that I was proud to see the court do was strike a blow for common sense, and for those of us who were somewhat appalled by the rush to add "regular attendance at work" or some other such phrase to job descriptions in the early days of the ADA.

In the money quote the Court held:
Here, the only evidence Mason proffered in support of her argument that she could perform the essential functions of her job from home, other than her own self-serving testimony, was the absence of attendance, supervision, and teamwork from the service coordinator job description. We are not persuaded the absence of those functions from the job description demonstrates those functions were non-essential. As common sense suggests, Avaya probably did not even consider informing its employees that they were actually required to show up at the workplace and work with co-employees under supervision when it drafted the service coordinator job description --- that is a given. Consequently, we find the omission of physical attendance, teamwork, and supervision from the job description entirely unremarkable.

The Court, wisely given the guidance of the Supreme Court, did eschew any per se rule against at home work as a reasonable accommodation, but also made it clear that it would be the rare situation where a plaintiff could demand it.


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