• Telecommuting as a Reasonable Accommodation Under the ADA
  • January 13, 2015
  • Law Firm: Nyemaster Goode P.C. - Des Moines Office
  • Advances in technology have redefined the workplace, including where work can be performed. In many instances, physical presence in the workplace is no longer a strict requirement, and employers have voluntarily adopted telecommuting/telework policies that allow employees to work from a remote location away from the central workplace.

    Courts and the Equal Employment Opportunity Commission interpreting the Americans with Disabilities Act are well aware of how technology has changed the modern workplace and have recognized that the class of jobs for which working from home may be reasonable is expanding. Under the ADA, employers have a fundamental duty to provide a reasonable accommodation to qualified individuals with disabilities who are employees or applicants for employment, so long as providing the accommodation is not an undue hardship. An accommodation is any change in the way things are customarily done or change in the work environment that allows an individual with a disability to enjoy equal employment opportunities.

    In April, a three-judge panel from the U.S. Court of Appeals for the Sixth Circuit recognized telecommuting as a possible reasonable accommodation under the ADA, reversing the decision of the federal district court, in Equal Employment Opportunity Commission v. Ford Motor, 752 F.3d 634 (6th Cir. 2014). The Sixth Circuit's decision reflects the position of the EEOC and most courts, including the Third Circuit, that view where work is performed as just another workplace policy that may need to be modified to accommodate disabled employees.

    There is no bright-line rule regarding the reasonableness of telecommuting as an accommodation. Courts in the Third Circuit require a case-by-case assessment to determine whether or not permitting a disabled employee to telecommute would be an undue burden to the employer, as in Kiburz v. England, 2008 U.S. Dist. LEXIS 55023 (M.D. Pa. July 16, 2008). Because of the fact-intensive nature of assessing disability accommodations, employers should not be so quick to deny an employee's request to telecommute. Employers faced with the difficult business decision of permitting telecommuting as an accommodation for a disabled employee or applicant should consider:

    Obligation to Engage in the Interactive Process

    Under the ADA, the interactive process requires employers and employees to engage in a dialogue regarding the employee's disability and limitations, to identify effective accommodations. Once an employee has requested an accommodation or it is apparent that an accommodation is necessary, the interactive process is triggered. Employers, which view a request to work from home as burdensome, must still engage in the interactive process and at a minimum should meet with the employee to discuss his or her disability and any limitations the disability imposes. Additionally, employers should request medical documentation to determine the nature and extent of the disability and to make an informed decision as to whether the employee's request to work at home is warranted.

    Essential Functions of the Employee's Job

    When considering an employee's request to work at home as an accommodation, it is imperative that employers analyze the employee's job duties to determine which tasks are essential—a job function is essential if it is a basic job duty that an employee must be able to perform. Employers who are concerned about employees performing work remotely should determine which essential job functions, if any, require the employee's physical presence at the workplace. Employers are not required to grant unreasonable accommodation requests, and a request to work at home is unreasonable if an employee is unable to perform the essential functions of his or her job from home, as in Pinegar v. Shinseki, 665 F. Supp.2d 487 (M.D. Pa. Oct. 14, 2009).

    An employer's judgment as to which functions are essential and a written job description prepared before advertising or interviewing for a job will be considered by the EEOC as evidence of essential functions. Other kinds of evidence that the EEOC will consider include:

    • The actual work experience of present or past employees in the job.

    • The time spent performing a function.

    • The consequences of not requiring that an employee perform a function.

    • The terms of a collective bargaining agreement.

    The EEOC recognizes that some jobs cannot feasibly be performed at home—such as food service, cashiers and truck drivers—because the employee's physical presence is essential to the position. Employers that are considering a request to work at home should review the employee's job duties to determine, among other things: if in-person interaction and face-to-face coordination is necessary; whether the position requires immediate access to information, equipment or tools only available in the workplace; and whether the employee has duties, such as management and supervision of other employees, that cannot effectively be performed from home. The existence of any of the above may warrant denying the request to work at home, but the EEOC has cautioned employers against denying a request to work at home as an accommodation solely because the employee's job involves some contact or interaction with colleagues.

    Alternative Accommodations

    Although employers have a statutory duty to provide a reasonable accommodation, they are not necessarily required to provide an employee's preferred accommodation. Rather, employers may choose to offer any accommodation that effectively accommodates the employee's limitations, as in US Airways v. Barnett, 122 S. Ct. 1516, 1522 (2002). Employers that are hesitant to grant a request to work at home should think critically about alternative accommodations that are effective in meeting the needs of the requesting employee. For example, where an employee suffers from an impairment that affects his or her ability to concentrate in the workplace and requests to work from home as an accommodation, the employer may deny the request and instead offer an accommodation in the workplace, such as providing the employee with a private office or area free from distractions, as in Mobley v. Allstate Insurance, 531 F.3d 539, 547 (7th Cir. 2008). Employees who refuse to consider or accept alternative accommodations offered by their employers run the risk of losing the protections the ADA provides.

    Although the modern workplace has been drastically transformed by technology, employers are not obligated to grant an employee's request to work at home as an accommodation when an essential function of the employee's job cannot be performed from home, or where granting the request would cause an undue hardship. Although technological advances have made the concept of the brick-and-mortar workplace more fluid, technology does not necessarily eliminate the need for regular attendance. Tech-savvy employers and employees have inadvertently expanded the meaning of a reasonable accommodation under the ADA. Going forward, employers cannot rest solely on their preference to have employees physically present in the workplace as a legitimate reason for denying an employee's request to work at home as an accommodation.