Telecommuting As A Reasonable Accommodation

In 2008 Congress passed the Americans With Disabilities Amendments Act (ADAAA) to strengthen the Americans with Disabilities Act (ADA). Congress intended to make it easier for individuals with disabilities seeking protection. By meeting the legal definition, employees and applicants are entitled to reasonable accommodation if necessary unless it causes an undue hardship or burden on the employer.

A reasonable accommodation is simply assistance or changes to a position or workplace that will enable an employee to do their job despite having a disability. Yet, it is not always easy for a disabled employee to get an employer to provide them with accommodation.

The ADAAA includes a non-exhaustive list of examples of reasonable accommodations:

“making existing facilities used by employees readily accessible to and       usable by individuals with disabilities, job restructuring, part-­time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.” 42 U.S.C. § 12111(9).

The EEOC has stated that teleworking – allowing an employee to work from home – may be a reasonable accommodation and that it may fall under the ADA’s reasonable accommodation requirement of modifying workplace policies. See, the EEOC’s Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disability Act; and the EEOC’s factsheet, “Work At Home/Telework as a Reasonable Accommodation.”

Employers have sometimes been reluctant to allow teleworking as a reasonable accommodation, arguing that working from home is not reasonable because employees need to be at work to do their jobs.

Employees with disabilities for whom working from home would provide them with a reasonable accommodation got a boost this year from both the EEOC and more recently, the 6th Circuit Court of Appeals.

In February 2014, the EEOC issued an opinion letter that discussed teleworking. The EEOC opined its position that an employer cannot have a blanket policy disallowing employees with disabilities from working from home. The EEOC emphasized that it recognizes telework as a form of reasonable accommodation and has provided guidance about teleworking. According to the EEOC, an employer’s suggestion that teleworking is not required except in extraordinary circumstances may lead the employer to violate the ADA. The employer and employee must work together to determine whether working from home would enable the employee to perform the job’s essential functions.

On April 22, 2014, the 6th Circuit issued a decision in EEOC v. Ford Motor Company, No. 12-2484 6th Cir. 2014). The employee suffered from irritable bowel syndrome (IBS), a condition that caused incontinence during flare-ups, often caused by stress. The employee worked as a resale steel buyer for Ford and was responsible for mediating supply issues between Ford’s steel suppliers and parts manufactures. The employee requested an accommodation of working from home on an as-needed-basis (depending on her IBS flare-ups) for up to four days a week. She claimed that most of her work could be accomplished by telephone and email and that she could reschedule any in-person meetings if required by her IBS. Ford maintained that her job duties required face-to-face meetings and that email or teleconference communication were insufficient substitutes. Ford also argued that part of her job was group problem-solving which required her to be available in the office to interact with her team members. Ford denied her request to telework and instead offered to move her desk closer to the restroom or to consider her for another job that may be more appropriate for telecommuting. The employee filed an EEOC charge alleging disability discrimination. After Ford later terminated her employment, the EEOC filed a lawsuit against Ford for failure to accommodate and retaliation under the ADA.

The district court ruled in favor of Ford – granting Ford summary judgment – finding that regular attendance in the office was an essential job requirement that need not be eliminated as an ADA accommodation. The 6th Circuit reversed.

While the 6th Circuit recognized case precedent in several circuits which hold that regular attendance at the workplace is an essential job function, the Court held that technological advances have expanded the scope of reasonable “workplaces” and employers need to consider telecommuting as a reasonable accommodation for employees whose disabilities prevent them from being physically on site each day:

“When we first developed the principle that attendance is an essential requirement of most jobs, technology was such that the workplace and an employer’s brick-and-mortar location were synonymous. However, as technology has advanced in the intervening decades, and an ever-greater number of employers and employees utilize remote work arrangements, attendance at the workplace can no longer be assumed to mean attendance at the employer’s physical location. Instead, the law must respond to the advance of technology in the employment context, as it has in other areas of modern life, and recognize that the “workplace” is anywhere that an employee can perform her job duties. Thus, the vital question in this case is not whether “attendance” was an essential job function for a resale buyer, but whether physical presence at the Ford facilities was truly essential. Determining whether physical presence is essential to a particular job is a “highly fact specific” question. [Citations omitted].”

The Court distinguished between positions where teamwork or other considerations may make an employee’s physical presence desirable from positions where physical presence indisputably is an essential job function, such as work done by a nurse or custodian.

The Court also held that the employer’s offer to let the employee apply for another unspecified position, with an uncertain outcome, did not absolve the employer from its obligation to consider telecommuting as accommodation to allow the employee to remain in her current position.

The takeaway: Employers should recognize that “attendance” should not be assumed to mean attendance at the employer’s physical location. The “workplace” is anywhere that an employee can perform their job duties.