MORRIS E FISCHERMorris E Fischer, Attorney for "Hayes vs. Napolitano"You are here: Home / Morris E Fischer / Telecommuting...
highly specialized so that the incumbent in the position is hired for his or her expertise or abilityto perform the partic...
During the litigation we first attempted to settle the case before the assigned Administrative LawJudge. She suggested tha...
POST COMMENTReturn to top of page Copyright © Morris E Fischer · 2013
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Morris E Fischer: Telecommuting and the Americans with Disabilities Act- Watch Out For the Coffee Cup Defense

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Morris E Fischer, an employment law specialist based in Silver Springs, MD gives his perspective on the Americans with Disabilities Act and how it affects those of us who telecommute.

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Morris E Fischer: Telecommuting and the Americans with Disabilities Act- Watch Out For the Coffee Cup Defense

  1. 1. MORRIS E FISCHERMorris E Fischer, Attorney for "Hayes vs. Napolitano"You are here: Home / Morris E Fischer / Telecommuting and the Americans With Disabilities Act: Watch Outfor the “Coffee Cup” DefenseTelecommuting and the Americans WithDisabilities Act: Watch Out for the “Coffee Cup”DefenseJune 18, 2013 by Morris E Fischer · Leave a Comment (Edit)The original article can be found hereOne hot area of employment disability law is the way in which telecommuting can be used by anemployee. Many employees enjoy the benefits of telecommuting, as it saves on travel time andexpenses, minimizes workplace disputes, and increases productivity. In many cases,telecommuting can accommodate individuals with disabling conditions to continue working.There has been, and will continue to be, much litigation in this area of the law. Here are somebasics to determine whether you may have the right to telecommute to your place ofemployment:1. Are you Disabled?The Americans with Disabilities Act (“ADA”) defines an individual with a disability as either: (A) aphysical or mental impairment that substantially limits one or more major life activities of anindividual; (B) a record of such impairment; or (C) an employee who can demonstrate that hisemployer regarded him or her as having such impairment.This impairment must either substantially limit one or more of a person’s major life activities orbodily functions. Major life activities include, but are not limited to, caring for oneself,performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending,speaking, breathing, learning, reading, concentrating, thinking, communicating and working.Major bodily functions include the operation of a major bodily function, including but notlimited to, functions of the immune system, normal cell growth, digestive, bowel, bladder,neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. Thisincludes persons with cancer or diabetes.2. Can you Perform the Job With or WithoutAccommodation?To be otherwise qualified, an employee must be able to perform the essential functions of herposition, with or without accommodation. An “essential” function is a primary, not a marginalone. It is in essence, the reason the position exists is to perform that function. An essentialfunction can also be essential because of the limited number of employees available amongwhom the performance of that job function can be distributed; and/or the function may beABOUT MORRIS E FISCHERMorris E Fischer has been practicing lawwith a specialty in Labor and Employmentfor 16 years. Morris E Fischer hassuccessfully litigated hundreds of cases,most recently gaining national attention forthe case "Hayes v. Napolitano." This site isdedicated to the Hayes case and for moreinformation on Morris E Fischer such asother cases and information on workingwith Morris E Fischer, please click here forMorris E Fischers main website.MORRIS E FISCHER’S RECENTPOSTSTelecommuting and the Americans WithDisabilities Act: Watch Out for the “CoffeeCup” DefenseHome Blog Hayes v. Napolitano
  2. 2. highly specialized so that the incumbent in the position is hired for his or her expertise or abilityto perform the particular function.3. Did You Request Accommodation? If Not,Why Not?The ADA makes it unlawful to fail to make reasonable accommodations to the known physical ormental limitations of an otherwise qualified individual with a disability who is an applicant oremployee, unless such covered entity can demonstrate that the accommodation would impose anundue hardship on the operation of the business of such covered entity;Moreover, the ADA requires an employer to be willing to consider making changes in itsordinary work rules in order to enable a disabled individual to work. The accommodationprovisions of the ADA may sometimes allow a worker with a disability to violate a rule thatothers must obey. The essence of the concept of reasonable accommodation is that, in certaininstances, employers must make special adjustments to their policies for individuals withdisabilities.Once an employer is put on notice of the need for an accommodation, that employer has amandatory obligation under the ADA to engage in an interactive process with the employee toidentify and implement appropriate reasonable accommodations.4. The Cup of Coffee DefenseRecently, my firm handled a disability claim in which a federal employee, a managementprogram analyst, was afforded a reasonable accommodation, a telecommuting schedule, underthe ADA for several years. Our client suffered from a severe back injury caused by a motorvehicle accident. A new supervisor was appointed over her who was either not trained properlyon reasonable accommodations for the disabled or purposely ignored such training. The newsupervisor had a rule that she insisted upon; namely, that every employee, no matter what thecircumstance, must call in to the office to inform her that said employee would miss work. Thiswas a classic case of a supervisor ignoring the pain and suffering of a disabled person in order tobuild conformity to rules that obviously adversely impact persons with disabilities.The employee informed the new supervisor of an impending back surgery and was granted thatday off. However, when the employee asked for additional time off the following week forrecovery time, the new supervisor refused to grant it, and then insisted that the employee cometo the office for a meeting, despite her great pain. At the meeting, the supervisor revoked ourclient’s telecommuting schedule and censured her for emailing her request early in the morningon the day she wanted off, rather than calling the supervisor later in the day.Our client’s restrictions included lifting greater than 15 pounds, sudden bending or twisting, anda 50% reduction in her lower left extremity. She couldn’t drive to her place of employment andexperienced great pain while riding the bus to work.During the case’s litigation, we asked the agency the following:Interrogatory No. 12. Identify each and every job duty or responsibility of Complainant that youcontend cannot be done at home in a telework capacity. State the reason for each duty orresponsibility she couldn’t do on a telework capacity.Response: Objection. This Interrogatory is argumentative, overbroad, unduly burdensome andirrelevant. Without waiving said objections and subject thereto, the Complainant’s duties aregenerally portable and, therefore, she can generally perform her duties while teleworking.
  3. 3. During the litigation we first attempted to settle the case before the assigned Administrative LawJudge. She suggested that although there is no specific job duty our client couldn’t perform, theagency could argue the “cup of coffee” defense. The essence of this defense goes something likethis:“There are many benefits to being in an employment setting that increase productivity foreveryone. When one appears at a place of employment something magical happens. He or shecan visit other employees and grab a cup of coffee to discuss elements of the job, organization,latest personnel developments and the most recent changes in policy. That employee can alsounderstand his or her job better and how it relates to the organization overall. It is an enrichingexperience for everyone involved.”Therefore, this argument posits that telecommuting for disabled employees may be at risk.In accordance with the Judge’s attempt to supply the agency with a reasonable accommodationdefense, we later took a deposition of our client’s supervisor and the following exchange tookplace:Q. Okay. What about this whole essence of team work and you kind of sort of have to be there tolike enjoy a cup of coffee with somebody to really get the flavor of the spirit or workenvironment type stuff, I mean doesn’t that employee miss out on all of that?A. Well, being gone one day I wouldn’t think so.Q. Okay. What about two days?A. Hmm, I don’t think so because we’re still in communication even when they’re teleworking.The agency was forced to settle with our client because they failed to demonstrate that there wasnot a single duty she couldn’t do from home and that in this case, the “cup of coffee” defensedidn’t work.As technology increases the ability to telecommute, more employers will recognize their potentialliability in failing to accommodate disabled employees with telecommuting. More employers willutilize the “cup of coffee” defense to deny telecommuting. Don’t rest on your rights. RequestAccommodation. If your employer denies it, ask for an explanation. If that explanation seemsfishy, speak to a lawyer.© 2013: Morris E. Fischer, Esq., is a labor and employment lawyer who handles employee rightsin the federal and private sectors. For more information,see http://www.manta.com/c/mr4d6nt/morris-e-fischer-esquire. The information you obtain onthis article is not intended to be, legal advice. You should consult an attorney for adviceregarding your individual situation.Filed Under: Morris E Fischer · Tagged With: Americans with Disabilities Act, Morris E FischerSpeak Your MindLogged in as evan. Log out?
  4. 4. POST COMMENTReturn to top of page Copyright © Morris E Fischer · 2013

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