I get this call pretty frequently. A client wants know whether it should accommodate an employee by allowing the employee to telecommute. The answer, in typical attorney fashion, is “it depends.” And it does. It really does.
Cue Bill Clinton video:
Telecommuting is an interesting topic. Years ago, I remember people professing that everyone would be working at home in the 2000s. Well, that never really came to be. Studies devoted to this phenomenon attribute telecommuting’s slow acceptance to a mixture of lack of trust, fear, cost, and other similar variables on the employer’s side. On the employee side, factors such as a sense of isolation, fear, and inability to engage in office politics are reasons regularly proffered for the lack of employees willing to engage in telecommuting. Who knows why, but we haven’t seen the numbers rise as initially anticipated. That said, we also haven’t seen flying cars come to be, despite Back to the Future II’s promise way back when.
An employer or the employee may suggest telecommuting–and it’s not a bad idea. But be cautioned: telecommuting should only be used as an accommodation to the extent the disability necessitates it. While I am generally a proponent of telecommuting and actually do it frequently, it’s another thing to be bootstrapped by a decision and get burned down the line, or incur excessive costs only to find out nothing has changed in relation to productivity or performance.
As a threshold matter, the EEOC does not require employers to have telecommuting programs. See EEOC Fact Sheet: Work at Home/Telecommuting as a Reasonable Accommodation. Case law is all over the place on this and there is no brightline rule. Here is are some things to consider, though:
1. Look at the disability. One of the most important things to ask yourself is whether the disability will truly be accommodated by allowing the employee to telecommute? In a 2015 case, the Sixth Circuit found telecommuting was not a reasonable accommodation for an employee with severe irritable bowel syndrome to work from home because her condition did not allow her to agree to any predictable schedule in which Ford could count on having her there in person. In conclusion, the job HAS to get done, right? The employee has to be able to be available to work and perform his or her duties.
2. Look at the job. Can the employee perform the essential job functions at home without imposing an undue hardship on the business? Does the employee supervise or monitor the work of others? Are face-to-face interactions required? Look closely at the job’s essential requirements. If the employee has to report to work, telecommuting may not be reasonable.
3. Look at the employee. Can the employee be trusted? Does the employee have attendance issues or problems meeting deadlines. If the employee is non-exempt, what safeguard will you have in place to limit him or her to an 8-hour workday?
Of course, as the universe would have it, no two cases are ever the same. The Law Firm of Alejandro Pérez is experienced in helping employers navigate through ADA compliance and advising clients on accommodation issues. Do not hesitate to contact our office for assistance.
Posted in Employment Law Tags: work from home, telecommuting, ADA, disability, reasonable accomodations, Americans with Disabilities Act, HR, Discrimination