United States: Recent Decisions Highlight the Obligation of Massachusetts Employers to Consider Allowing Disabled Employees to Work Remotely as a Reasonable Accommodation

By Wilfred J. Benoit, Jr., Jennifer M. Fay, Robert M. Hale, James W. Nagle and Bradford J. Smith

Two recent decisions with opposite results highlight the principle that Massachusetts employers should consider, but may not be required to grant, an employee’s request to work from home or from some other location as an accommodation to the employee’s disability.

In Smith v. Bell Atlantic, the Massachusetts Appeals Court held that work from home requests are not automatically outside of the scope of an employer’s obligation. The Appeals Court further held that, when such an accommodation is appropriate, employer flexibility with respect to office attendance may not be enough; the employer also may be required to take reasonable steps to enhance the effectiveness of the accommodation. Such steps may include equipping a home office, providing adequate technological support and changing modes of supervisory/employee communications.

On the heels of Smith, the United States District Court for the District of Massachusetts decided Mulloy v. Acushnet Company. In Mulloy, a federal trial court judge held that an employee’s request to work remotely with the assistance of a Web-cam was properly rejected by an employer. Smith and Mulloy involved applications of the same legal principles to similar accommodation requests. Nevertheless, the cases are distinguishable in several important respects. The plaintiff in Smith was a long-term employee with wellestablished job skills and a severe disability. In contrast, Mulloy involved a newer employee whose only impairment was an adverse reaction to chemicals present in his workplace. In addition, Ms. Smith worked independently while Mr. Mulloy’s job duties included regularly interacting with machines and personnel located in the workplace. These and other factual differences led the two courts to reach opposite conclusions when faced with the question of whether an employer needs to provide requested technological solutions to obviate the need for an employee to be physically present at work.

The defendant in Smith, Bell Atlantic (subsequently New England Telephone and NYNEX), employed the plaintiff, Doreen Smith, for more than 20 years. Throughout her employment, Ms. Smith experienced significant medical challenges that stemmed from a severe case of childhood polio. After 13 years of employment, Ms. Smith’s health began to deteriorate further. She was diagnosed with post polio syndrome, a degenerative condition that is exacerbated by overexertion. Eventually, Ms. Smith needed to use a motorized scooter to travel all but very short distances. Because of this, Ms. Smith needed to travel in a large van equipped with a lift for the scooter.

For most of the period at issue in the case, Ms. Smith was a "second-level manager." Like some other second-level managers at the Company, she usually did not have supervisory authority. Ms. Smith performed a number of different projects that primarily involved gathering and analyzing data, preparing reports and making recommendations on technical matters.

It was undisputed that Bell Atlantic provided Ms. Smith with numerous accommodations during her employment, including lengthy leaves of absence, parttime work and work-from-home arrangements. Ms. Smith claimed, however, that the company should have done more and failed to accommodate her disability through a series of actions and request denials. Specifically, she alleged that her employer: (i) rejected, without explanation, her repeated requests to report to a job location with a shorter commute and easier handicap parking access; (ii) threatened to fire her for not reporting to work even after a doctor in the company’s medical department advised her to remain at home; (iii) failed to provide her with home office equipment or the technological support necessary for her to perform her job remotely; (iv) failed to communicate with her electronically instead of by handwritten note; and (v) neglected to use available conferencing capabilities to include her in meetings.

Ultimately, Ms. Smith left her job due to extreme fatigue and the need for surgery. After six months of short-term disability, Ms. Smith went on total permanent disability and never returned to work. Ms. Smith filed her lawsuit against Bell Atlantic during her employment and the trial was held after she left her job. The jury returned a verdict in favor of Ms. Smith. It determined that Bell Atlantic failed to meet its reasonable accommodation obligations by not providing Ms. Smith with a home office or adequately supporting her work-from-home arrangement. Bell Atlantic appealed. The Smith opinion concerns that appeal.

Plaintiff Michael Mulloy worked as an electrical engineer for Acushnet, a manufacturer of golf products, for three years. After nearly a year of employment, Mr. Mulloy began to experience throat and chest tightness and dizziness. An occupational physician determined that his symptoms were caused by exposure to the isocyantes in the plant. The Company first attempted to accommodate Mr. Mulloy’s adverse reaction by restricting him from working in areas in the plant where chemicals were generated. Although this arrangement worked for some time, Mr. Mulloy’s symptoms returned and the company’s occupational medical consultant decided that Mr. Mulloy should stay out of all buildings where chemical irritants were used. As a result, Acushnet transferred Mr. Mulloy to its headquarters fifteen miles away from the plant. After evaluating the matter further, however, the company determined that Mr. Mulloy could not perform the essential functions of his electrical engineer position unless he was physically present in the plant. As a result, the company terminated Mr. Mulloy’s employment. Mr. Mulloy sued Acushnet. After discovery, the company filed a motion for summary judgment. The Mulloy decision is the trial court judge’s response to the company’s motion for summary judgment.

As an initial matter, the Smith and Mulloy courts needed to determine if each respective plaintiff was entitled to protection under the law. To have a "disability" for discrimination law purposes, an employee must have a physical or mental impairment that "substantially limits the ability to perform one or more major life activities". In the Smith case, it was undisputed that Ms. Smith, who suffered from severe complications associated with polio, was a person with a "disability."

In the Mulloy case, it was undisputed that the physical symptoms Mr. Mulloy suffered as a result of being exposed to certain chemicals constituted an impairment. But the company contested Mr. Mulloy’s claim that impairment rose to the level of a disability. Mr. Mulloy argued that his reaction to some chemicals substantially limited in his ability to perform the major life activities of breathing and working and that he could only work in a "meticulously clean environment". The court rejected these arguments, ruling that there was insufficient evidence of substantial impairment of either breathing or working since Mr. Mulloy was not symptomatic most of the time and was not restricted from either a class or a broad range of jobs. Although the court’s finding that Mr. Mulloy did not suffer from a substantially limiting impairment was fatal to his case, the court went on to analyze, and ultimately reject, his claim on alternative grounds.

The courts in Smith and Mulloy both grappled with the issue of when a disabled person is "qualified". The Appeals Court rejected Bell Atlantic’s argument that Ms. Smith was not "qualified," concluding that neither daily presence in the office nor travel was "essential" to Ms. Smith’s work as a second-level manager. The Appeals Court observed that the company made use of second-level managers in a wide variety of functions and that many of these jobs did not require travel, direct supervision or even face-to-face interaction. Because technology made it possible to do a number of second-level manager jobs remotely, a number of employees who held this position were allowed to work from home. The Appeals Court also rejected the company’s argument that Ms. Smith’s frequent and lengthy absences precluded her from being a qualified disabled person. Given her positive performance reviews and lack of complaints about her absences, the Appeals Court found that uninterrupted attendance was not an essential function of her job.

The discussion concerning when an absent employee is "qualified" was decidedly different in Mulloy. The court started with the premise that many courts have recognized that physical attendance in the workplace is an essential function of most jobs and that only in an "exceptional case" should an employer need to allow an employee to work from home or another location. The court then considered whether viewing the machines in the plant and interacting with employees working on them were essential functions of Mr. Mulloy’s electrical engineering job. Like Ms. Smith, Mr. Mulloy argued that if Acushent provided adequate technological support, in his case in the form of a Web-cam that would allow him to view the machines without being at the plant, he would be able to perform his essential job functions remotely and, therefore, be "qualified". The court concluded, however, that Mr. Mulloy’s own conclusions were not sufficient to overcome the deference to which the employer was entitled in determining essential functions. Unlike in Smith, Mr. Mulloy could not point to any co-workers who had been allowed to perform similar job tasks remotely. He also presented no testimony from co-workers to support his view of the essential functions.

Both courts also gave careful consideration to the issue of reasonable accommodations. In Smith, Ms. Smith claimed that although she had been permitted to work part-time from her home, Bell Atlantic had failed to implement this accommodation effectively. The company countered that telecommuting goes beyond any reasonable accommodation obligation and, therefore, it could not be required to provide additional support. The Appeals Court determined that work– from-home arrangements are not automatically outside of the scope of an employer’s obligation; the specific facts of the case control.

The Appeals Court concluded that the jury could find that it was feasible for Ms. Smith to perform most or all of her work remotely and that her willingness to travel to the office for meetings sufficiently addressed any need for face-to-face interaction. It noted that there did not appear to be a need for close supervision of Ms. Smith. The court also found that the company failed to provide sufficient support of the work-from-home arrangement by not supplying home office resources and because Ms. Smith’s supervisor left her handwritten notes in the office and did not consistently include her in meetings by teleconference. Based on these facts, the court held that the company could be found not to have accommodated Ms. Smith’s medically compelled need to work from home.

In Mulloy, the court reached a different result. It addressed Mr. Mulloy’s proposition that Web-cam technology might be a form of reasonable accommodation that would allow him to do his job from another location. Acushnet balked at the suggestion, citing the complexity of the machine and arguing that it would be necessary to hire an additional employee to communicate with Mr. Mulloy regarding the Web-cam. The employer argued that having to grant such a request would amount to an "undue burden" under the law. In the end, the court found it unnecessary to address the undue burden issue since it found Mr. Mulloy’s request that he be allowed to work remotely patently unreasonable given the interactive nature of the job.

The Smith and Mulloy cases highlight the fact-specific nature of reasonable accommodation analyses and the perils associated with attempting to apply a onesize- fits-all approach to workplace disability issues. Employers should consider working from home or another location as a possible reasonable accommodation for an employee who has a medical need to be away from the workplace. However, such an accommodation may only be reasonable if the employee can perform the essential functions of his or her position by working remotely. Determination of a job’s essential functions requires an individualized inquiry and depends on a number of factors including the nature of the job, the individual’s work history and the disability. Off-site work likely will not be considered to be a reasonable accommodation when an employee is closely supervised, needs to work with certain equipment or tools that cannot be replicated at home and/or performs a job that involves regular face-to-face contact with co-workers or customers. Whatever the appropriate accommodation, once the obligation arises the employer cannot satisfy it by only nominally granting a modified work arrangement. While an unsuccessful accommodation does not necessarily expose an employer to liability, employers must make good faith efforts to make accommodations that effectively enable disabled employees to perform their essential job functions.

Goodwin Procter LLP is one of the nation's leading law firms, with a team of 700 attorneys and offices in Boston, Los Angeles, New York, San Diego, San Francisco and Washington, D.C. The firm combines in-depth legal knowledge with practical business experience to deliver innovative solutions to complex legal problems. We provide litigation, corporate law and real estate services to clients ranging from start-up companies to Fortune 500 multinationals, with a focus on matters involving private equity, technology companies, real estate capital markets, financial services, intellectual property and products liability.