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On March 16, 2016, President Obama nominated the Honorable Merrick B. Garland, Chief Judge on the U.S. Court of Appeals in D.C., to the United States Supreme Court. Undoubtedly, Judge Garland faces an uphill confirmation battle in the current political climate. But if Judge Garland becomes Justice Garland, what effect might he have on the Supreme Court’s labor and employment decisions?

One possibility that seems to have some support is that Justice Garland might be receptive to arguments that telecommuting can be a reasonable accommodation for an individual’s disability under the Americans with Disabilities Act or the Rehabilitation Act. This issue has been a hot topic for employers as workplaces change with modern technology. Most recently making headlines on this issue was the Sixth Circuit en banc decision in EEOC v. Ford Motor Company, 782 F.3d 753, rejecting telecommuting as a reasonable accommodation for the employee.

Judge Garland took on an issue relevant to the question of telecommuting and found in the employee’s favor in the opinion he authored in Breen v. Dept. of Transportation, 282 F.3d 839 (D.C. Cir.). In Breen, the employee was a file clerk for the Federal Highway Administration who was diagnosed with obsessive compulsive disorder. Breen sought an alternative work schedule as a reasonable accommodation that would allow her an extra hour each work day to perform uninterrupted work and would require her to have an extra day off every two weeks to maintain an eighty-hour pay period. The employer denied this accommodation, and the district court granted summary judgment for the employer on Breen’s Rehabilitation Act claim.

However, Judge Garland wrote the opinion for the D.C. Circuit that reversed the district court’s summary judgment order. Judge Garland addressed and dismissed three arguments by the employer as to why such an accommodation would not have been available for it to provide. Of special interest to this discussion was the employer’s argument that the employee was “needed in the office every day.” This is often the basis for arguing that telecommuting is not a reasonable accommodation that an employer must provide under the ADA or Rehab Act.

On this point, Judge Garland noted there was evidence in the record creating an issue of material fact over whether Breen’s everyday presence was an essential function of her position. In support, Judge Garland cited the decision in Langon v. Dept. of Health and Human Servs., 959 F.3d 1053 (D.C. Cir. 1992). As described by Judge Garland, the Langon decision found a genuine issue of material fact over whether working from home was an available reasonable accommodation for an employee diagnosed with multiple sclerosis who was a computer programmer.

Whether Justice Garland of the U.S. Supreme Court would find full-time telecommuting to be a reasonable accommodation remains to be seen. However, he has shown in at least one case to be receptive to such a request where it is made on a limited basis and there is evidence that it will not prevent an employee from fulfilling the essential functions of her position.

Author’s note: The folks at the Onlabor.org blog have done a fine job collecting and summarizing Judge Garland’s decisions involving the NLRA. You can review their summary here. Generally, they observe that Judge Garland tends to defer to the National Labor Relations Board’s decisions on review. 

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