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.

1. MORRIS E FISCHER
Morris E Fischer, Attorney for "Hayes vs. Napolitano"
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for the “Coffee Cup” Defense
Telecommuting and the Americans With
Disabilities Act: Watch Out for the “Coffee Cup”
Defense
June 18, 2013 by Morris E Fischer · Leave a Comment (Edit)
The original article can be found here
One hot area of employment disability law is the way in which telecommuting can be used by an
employee. Many employees enjoy the benefits of telecommuting, as it saves on travel time and
expenses, 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 some
basics to determine whether you may have the right to telecommute to your place of
employment:
1. Are you Disabled?
The Americans with Disabilities Act (“ADA”) defines an individual with a disability as either: (A) a
physical or mental impairment that substantially limits one or more major life activities of an
individual; (B) a record of such impairment; or (C) an employee who can demonstrate that his
employer regarded him or her as having such impairment.
This impairment must either substantially limit one or more of a person’s major life activities or
bodily 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 not
limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder,
neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. This
includes persons with cancer or diabetes.
2. Can you Perform the Job With or Without
Accommodation?
To be otherwise qualified, an employee must be able to perform the essential functions of her
position, with or without accommodation. An “essential” function is a primary, not a marginal
one. It is in essence, the reason the position exists is to perform that function. An essential
function can also be essential because of the limited number of employees available among
whom the performance of that job function can be distributed; and/or the function may be
ABOUT MORRIS E FISCHER
Morris E Fischer has been practicing law
with a specialty in Labor and Employment
for 16 years. Morris E Fischer has
successfully litigated hundreds of cases,
most recently gaining national attention for
the case "Hayes v. Napolitano." This site is
dedicated to the Hayes case and for more
information on Morris E Fischer such as
other cases and information on working
with Morris E Fischer, please click here for
Morris E Fischer's main website.
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Telecommuting and the Americans With
Disabilities Act: Watch Out for the “Coffee
Cup” Defense
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2. highly specialized so that the incumbent in the position is hired for his or her expertise or ability
to 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 or
mental limitations of an otherwise qualified individual with a disability who is an applicant or
employee, unless such covered entity can demonstrate that the accommodation would impose an
undue 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 its
ordinary work rules in order to enable a disabled individual to work. The accommodation
provisions of the ADA may sometimes allow a worker with a disability to violate a rule that
others must obey. The essence of the concept of reasonable accommodation is that, in certain
instances, employers must make special adjustments to their policies for individuals with
disabilities.
Once an employer is put on notice of the need for an accommodation, that employer has a
mandatory obligation under the ADA to engage in an interactive process with the employee to
identify and implement appropriate reasonable accommodations.
4. The Cup of Coffee Defense
Recently, my firm handled a disability claim in which a federal employee, a management
program analyst, was afforded a reasonable accommodation, a telecommuting schedule, under
the ADA for several years. Our client suffered from a severe back injury caused by a motor
vehicle accident. A new supervisor was appointed over her who was either not trained properly
on reasonable accommodations for the disabled or purposely ignored such training. The new
supervisor had a rule that she insisted upon; namely, that every employee, no matter what the
circumstance, must call in to the office to inform her that said employee would miss work. This
was a classic case of a supervisor ignoring the pain and suffering of a disabled person in order to
build conformity to rules that obviously adversely impact persons with disabilities.
The employee informed the new supervisor of an impending back surgery and was granted that
day off. However, when the employee asked for additional time off the following week for
recovery time, the new supervisor refused to grant it, and then insisted that the employee come
to the office for a meeting, despite her great pain. At the meeting, the supervisor revoked our
client’s telecommuting schedule and censured her for emailing her request early in the morning
on 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, and
a 50% reduction in her lower left extremity. She couldn’t drive to her place of employment and
experienced 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 you
contend cannot be done at home in a telework capacity. State the reason for each duty or
responsibility she couldn’t do on a telework capacity.
Response: Objection. This Interrogatory is argumentative, overbroad, unduly burdensome and
irrelevant. Without waiving said objections and subject thereto, the Complainant’s duties are
generally portable and, therefore, she can generally perform her duties while teleworking.

3. During the litigation we first attempted to settle the case before the assigned Administrative Law
Judge. She suggested that although there is no specific job duty our client couldn’t perform, the
agency could argue the “cup of coffee” defense. The essence of this defense goes something like
this:
“There are many benefits to being in an employment setting that increase productivity for
everyone. When one appears at a place of employment something magical happens. He or she
can 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 also
understand his or her job better and how it relates to the organization overall. It is an enriching
experience 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 accommodation
defense, we later took a deposition of our client’s supervisor and the following exchange took
place:
Q. Okay. What about this whole essence of team work and you kind of sort of have to be there to
like enjoy a cup of coffee with somebody to really get the flavor of the spirit or work
environment 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 was
not a single duty she couldn’t do from home and that in this case, the “cup of coffee” defense
didn’t work.
As technology increases the ability to telecommute, more employers will recognize their potential
liability in failing to accommodate disabled employees with telecommuting. More employers will
utilize the “cup of coffee” defense to deny telecommuting. Don’t rest on your rights. Request
Accommodation. If your employer denies it, ask for an explanation. If that explanation seems
fishy, speak to a lawyer.
© 2013: Morris E. Fischer, Esq., is a labor and employment lawyer who handles employee rights
in the federal and private sectors. For more information,
see http://www.manta.com/c/mr4d6nt/morris-e-fischer-esquire. The information you obtain on
this article is not intended to be, legal advice. You should consult an attorney for advice
regarding your individual situation.
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