1. ENGAGE IN AN INTERACTIVE PROCESS WITH THE EMPLOYEE---It is essential for the employer to interact with the employee. You must understand the employee’s purported limitations in the workplace. Ask the employee to explain to you how the job could be done from home. Although you cannot inquire in great deal about the disability itself in the absence of a HIPAA waiver from the employee, you can ask her to explain the limitations caused by the disability, not the condition itself, and how this makes working at your premises difficult. At this point, you should require a medical certification to support the accommodation request. Even if the disability is patently obvious, it is important to request this of all employees seeking accommodations so as not to give rise to a disparate treatment suit against Title VII of the Civil Rights Act.
  2. DETERMINE IF THE ESSENTIAL JOB DUTIES CAN BE PERFORMED FROM HOME—I cannot say strongly enough that, if you do not have written job descriptions, which are regularly updated, it will be much more difficult for you to label any particular duty as essential. You are not required to delete any fundamentally essential duties to enable the worker to telecommute. You should consider several factors, including whether you can adequately supervise the employee, whether and how much face-to-face interaction is necessary, and whether the duties require equipment or tools that cannot be replicated at home.
  3. DISCUSS ALTERNATIVE ACCOMMODATIONS—Can you identify other workplace accommodations that could be made to enable the worker to work from your premises? If so, you can and should provide such accommodations rather than authorizing a telecommuting situation. Critically, the ADA does not require you to provide the accommodation preferred by the employee. However, the accommodation proposed must be effective to facilitate job performance.
  4. WHAT IS THE IMPACT OF THE ACCOMMODATION ON THE WORKPLACE? You are only required to provide an accommodation so long as it does not create an undue hardship to the company. Under EEOC regulations, this is a high threshold to meet: you have to show that it would be unduly extensive, substantial, disruptive or expensive or would fundamentally alter the nature of your business. If the employee can work from home without expensive equipment, then you will not meet the hardship standard.
  5. RE-EVALUATE AT INTERVALS—for two reasons. First, as an employer, you have an ongoing duty to accommodate; if the employee’s needs or capabilities change, the initial accommodation may require modification. For example, you may need to remove non-essential job functions if doing so does not give rise to undue hardship. In the alternative, if the employee’s condition improves, enabling her to return to the workplace, an on-premises accommodation might be required. Finally, if, even with accommodation, the worker cannot perform the essential job requirements from home, you may need to consider a leave of absence, whether short-term disability, long-term disability if applicable, or Family Medical Leave Act supported.

Have a question or comment? Contact Jennifer at Jennifer@Kirschenbaumesq.com or at (516) 747-6700 x. 302.