Court of Appeals Affirms Woody Allen - When it Comes to Work, Showing Up Is Essential

05 July 2017 Labor & Employment Law Perspectives Blog
Author(s): Gregory W. McClune

The movie director and comedian Woody Allen is credited with the observation that “Showing up is 80% of life.” A federal court of appeals in New Orleans has gone one step further and ruled that showing up for work is a 100% requirement, at least in most circumstances.

The plaintiff was a litigation attorney employed by the State of Louisiana. She developed serious health conditions due to complications from a kidney transplant. Her employer granted her temporary accommodations to work from home, with the goal of eventually reintegrating back into the workforce. After several months of telecommuting, her employer denied the attorney’s continuing request to work from home, but offered alternative conditional accommodations. She rejected this offer and renewed her request to work from home. When that request was denied, the attorney sued, claiming a violation of the Americans With Disabilities Act (ADA).

As we have noted in previous Employment Law Updates, working from home, or “telecommuting” has become an increasingly important feature of working America. Many employees seek out such work because, among other things, it supplies a flexibility that is not always present in the traditional workplace. However, as we have also pointed out, telecommuting is not practical for many jobs and is often undesirable on an indefinite, fulltime basis. Occasionally, an employee will claim that she/he is suffering from a disability that requires him/her to work at home and that the ADA obliges the employer to so accommodate.

The ADA defines a protected “qualified” employee as one who is able to “perform the essential functions” of the job “with or without reasonable accommodation.” The New Orleans court noted that many prior courts had concluded that regular work-site attendance is an essential function of most jobs. Moreover the Equal Employment Opportunity Commission, which enforces the ADA, recognizes that, for some jobs, the essential duties can only be performed in the workplace and telecommuting may not be feasible.

Interestingly, the New Orleans court noted that many employers have policies permitting telecommuting under certain circumstances and observed that requiring employers to offer the option of unlimited telecommuting to a disabled employee would have a “chilling effect” on such policies.

So the takeaway is this – most of the time “showing up” at work is an “essential function” of the job and an employer can insist on such physical presence. So was Woody Allen right?  Let us say he was 80% right.  As Malcolm Forbes once said: “Presence is more than just being there.” But that’s a subject for another, future ELU.



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