This case caught my eye because I’ve never seen the term “maxiflex schedule” before. It sounds so…well, extensive and overwhelming. I’m sure that’s what the employer in Solomon v. Vilsack thought when it denied the employee’s requested accommodation for this type of schedule, which involves substantial flexibility in working hours. The trial court stated that a maxiflex schedule was unreasonable as a matter of law under the Rehabilitation Act (which is the disability law that covers federal employees, and which applies the same legal standards as the Americans with Disabilities Act). Sadly for the employer, however, the U.S. Court of Appeals for the D.C. Circuit disagreed with the trial court, stating that whether a maxiflex schedule is reasonable or unreasonable requires a case by case analysis.
In this case, an employee suffered from depression, which intensified. Because of her worsening condition, the employee couldn’t maintain her normal work schedule. She managed to complete all of her work, however, by taking leave during her normal workday and then working additional unscheduled hours. She also performed much of her work from home. Her supervisor was aware that the employee was working these irregular hours. The employee’s work performance was not an issue.
After several months of this, the employee emailed her supervisor to apologize for her erratic leave and explain that she was being treated for depression. The supervisor requested medical documentation of any need for accommodation. The employee provided a doctor’s note requesting a “flexible work schedule” like the one that the employee had already been working. Her request for accommodation was rejected, and she was no longer permitted to work the same unpredictable schedule that she had been working. She subsequently requested to telecommute part-time, but this request was also denied. Believing that she had no other options, the employee retired on permanent disability. She then sued for denial of her request for reasonable accommodation, in addition to some other claims.
The trial court found that a maxiflex schedule could never be reasonable, as a matter of law, and dismissed the reasonable accommodation claim. On appeal, however, the D.C. Circuit reversed the trial court’s ruling. Observing that whether any accommodation is reasonable is a “contextual and fact-specific inquiry,” the D.C. Circuit went on to state that, “Technological advances and the evolving nature of the workplace” have increased the types of accommodations available. Thus, the D.C. Circuit concluded, “it is rare that any particular type of accommodation will be categorically unreasonable as a matter of law.” With regard to the maxiflex schedule, the D.C. Circuit found that it should have been assessed to see if it would have enabled the employee to perform her essential job functions without undue hardship to the employer.
So the lesson for employers is don’t immediately reject an accommodations request out of hand, no matter how ridiculous it may appear. Instead, go through the interactive process of discussing and assessing the requested accommodation and any potential alternatives to determine if the possible accommodations are reasonable or not. In particular, be open-minded about technologically driven accommodations – because courts certainly are trending in that direction!