Telecommuting presents a hotbed of legal issues---disparate treatment, malingering, workplace politics, productivity, etc. Frequently, an employer will permit a worker to telecommute after a major life event including the birth of a child or a serious illness, and then find it difficult to rein them back into the office. Particularly if productivity or access aren’t good or subsequent requests for telecommuting are denied based on organizational needs, co-workers will be resentful.

So why bother? Because under the Americans with Disabilities Act, an employer is obligated to provide reasonable accommodations to qualified disabled individuals to permit them to perform their essential job functions unless doing so would create undue hardship for the company. Telecommuting is not specifically addressed in the ADA itself or in its regulations. However, the Equal Employment Opportunity Commission (EEOC) and some courts are now taking the position that telecommuting is a reasonable accommodation that employers should evaluate in making reasonable accommodation decisions. Particularly if the employee does not work under close supervision and does not require specialized equipment that cannot be replicated at home, telecommuting should be considered. As early as 2003, the EEOC stated that, if an employer has a telecommuting policy in place, employees with disabilities must be given an equal opportunity to participate in such programs, regardless of length of service. And the courts have made it clear that what is good for one employee should be good for all. If an employee had been permitted to telecommute previously or others were granted that privilege, a disabled individual denied the right to telecommute would have a cause of action under the ADA. Woodruff v. Peters, 482 F. 3d 521 (D.C. Cir. 2007).

The most recent court case involving telecommuting, EEOC v. Ford Motor Company, was heard in the federal Court of Appeals for the 6thCircuit. Therein, the court considered whether an employee with irritable bowel syndrome could perform her job at home as an ADA accommodation. The court concluded that, although the employer provided strong evidence that physical presence at the job site was an essential job function, the employee provided rebuttal evidence. The court posited that the true analysis should not be whether attendance is essentially a job function but whether physical presence at the employer’s premises is truly essential. The case has been remanded to the trial level for further proceedings and reconsideration based on this new perspective. Certainly, by raising the question as the 6thCircuit has done, the result is far more likely to be in the employee’s favor.

My next blog post will take you through the steps of evaluating whether the employee’s request to work from home is a reasonable one which should be accommodated under the ADA.

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