Working 9 to 5, What a Way to Make a Living

Now that many employees have had a taste of working from home, employers are faced with challenges surrounding this “new” work environment. The 10th Circuit, in two cases, recently addressed the Americans with Disabilities Act’s (ADA) reasonable accommodation process in the context of working half days and working from home.

In Lamm v. Devaughn Jame LLC the plaintiff was a paralegal. Her job duties were regular and predictable with attendance for 40 hours per week, during normal business hours, in the office: placing and receiving calls to/from witnesses, opposing counsel and the courts; personally interacting with attorneys, paralegals and legal assistants; and meeting with clients in the office to prepare documents.

The plaintiff began having attendance problems. When she was reprimanded by her employer, she asked for an ADA accommodation. She said her attendance issues were a result of her Generalized Anxiety Disorder; she asked to be allowed to work only half days when she had an anxiety attack.

Ultimately the firm determined it could not accommodate this request and the plaintiff was terminated. The 10th Circuit reviewed the firm’s decision and found the plaintiff’s request for accommodation was “unreasonable as a matter of law.”

Lamm is a road map for employers. In reviewing the accommodation request, the court looked at not only the job description, but also the employer’s judgment, the effect of an employee being unable to do their job and the work experience of other employees in comparable positions. The 10th Circuit has routinely held that it does not wish to play the role of a “Super-Personnel Department” overseeing employment decisions across the land and again confirmed it would not “second guess the employer’s judgment when its description is job-related, uniformly enforced, and consistent with business necessity.”

Prior to the Lamm decision, the court in Brown v Austin addressed the reasonable accommodation of working remotely. Mr. Brown suffered from Post-Traumatic Stress Disorder (PTSD); he wanted to work two days a week from home, make up lost time on the weekends and be assigned a new supervisor. Brown’s suggested accommodation was not reasonable because an essential function of Brown’s job was to be in the office at least four days per week, and the change of supervisors simply pointed to his desire to override the employer and dictate the essential functions of his job.

Employers should routinely review their job descriptions both independently and with input from the employees themselves. While creating job descriptions may seem to be daunting, in-house or external employment law counsel can get you started with templates that can then be fine-tuned. Employees know what they do every day, and their opinions go a long way to confirm what the “real” essential functions of a job are, so don’t forget to make their input part of this process.

These cases remind us that good written job descriptions, which are uniformly enforced, are the best defense against unreasonable accommodations requests. Job descriptions, like all policies, should be reviewed at least annually to be sure they are still relevant. Do this and be in the best place possible to defend not only your job descriptions, but the decisions you make about requests to deviate from the job description as part of the accommodation process.

And yes, Dolly, employers now feel just like you; trying to get employees to work from 9 to 5 seems to be all taking and no giving, it is enough to make us all crazy if we let it.


Associated People:

Madalene A.B. Witterholt

Practice Area:

Labor & Employment