Telecommuting as a Disability Accommodation (United States)

By Stephanie M. Cerasano and Joseph J. Lynett, Jackson Lewis P.C.

Overview

With the extensive use of computers and electronic communications in the workplace, many employees are asking to "work from home" as a disability accommodation. Such requests can challenge employers who seek to limit telework to certain positions or to high-performing employees. This article suggests strategizes for evaluating employee requests to telecommute as an accommodation, as well as factors to consider when allowing employees to work from home.

 

Overview of ADA Accommodation Process

The Americans with Disabilities Act ("ADA") requires covered employers to provide reasonable accommodations to qualified disabled employees if needed to perform essential job functions, unless the accommodation would place an undue burden on the employer. See Facts About the Americans with Disabilities Act. The ADA Amendments Act (ADAAA) broadened the definition of "disabled," vastly increasing the number of covered workers. The Amendments Act also directed courts to focus on whether employers have taken sufficient steps to reasonably accommodate employees, rather than extensively analyze whether employees meet the disability standard. See Fact Sheet on the Equal Employment Opportunity Commissions's Final Regulations Implementing the ADAAA.

The ADA interactive process begins when a disabled employee requests an accommodation. Through this process, the employer and employee discuss the employee's limitations and job duties, possibly with input from a healthcare provider, to evaluate accommodations that could allow the employee to perform essential job functions. See Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act. If more than one accommodation would be equally effective, the employer may choose the accommodation. Thus, when an employee asks to work remotely, absent discrimination issues, the employer may deny the request if the employer can provide alternative accommodations in the workplace that allow the employee to perform essential job functions.

Essential functions are the core duties of a position, as opposed to marginal duties. See 29 C.F.R. § 1630.2(n). For example, a delivery driver typically would need to drive as an essential job function, while the ability to lift certain size packages may or may not be an essential function, depending on the specific facts. For telecommuting requests, a key issue is whether presence in the workplace is an essential function of the employee's job, or merely a marginal function.

The ADA imposes a high standard for employers to deny an accommodation because it would impose an "undue burden." This standard requires an employer to show that the requested accommodation causes significant difficulty or expense given the employer's financial resources and operations. See 29 C.F.R. § 1630.2(p). When an employee asks to work remotely to accommodate a disability, it may be difficult for an employer with significant resources, or which has robust information technology capabilities, to contend successfully that the accommodation imposes an undue burden due to cost.

The EEOC's Position and Court Trends Regarding Telecommuting

The Equal Employment Opportunity Commission ("EEOC") is the federal agency that enforces the ADA. The EEOC takes the position that telecommuting can be a required accommodation if a disabled employee can perform the job from home. The EEOC asserts that an employer may need to offer work-from-home as an accommodation even if the employer does not have a formal telework program. However, the EEOC recognizes that the employer has the right to evaluate alternative, equally effective accommodations that would allow the employee to remain in the workplace. The EEOC's "Fact Sheet: Work at Home/Telework as a Reasonable Accommodation" provides an overview of the agency's position. See https://www.eeoc.gov/facts/telework.html.

Federal courts have recognized that telecommuting, in some circumstances, can be a required accommodation for disabled employees. However, courts carefully analyze whether working from home truly allows the employee to perform essential functions. For "interactive" jobs, such as those requiring team work, courts have concluded that employers can require in-person attendance, at least some of the time.

The Sixth Circuit Court of Appeals has issued an important decision in this area, which also provides an overview of other circuit decisions: EEOC v. Ford Motor Company, 782 F.3d 753 (2015). After initially reversing summary judgment for the employer, the court en banc decided the case the other way, affirming the trial court's decision for the employer. The court focused on the fact that the employee's job as a resale buyer required face-to-face interaction. And, while other resale buyers had worked from home for limited periods of time, none had done so at the same rate this employee had requested. The court also noted that non-disabled employees reported to work if needed on their "home" days.

The decision includes strong language favoring the enforcement of employer attendance requirements. However, the decision focuses on the specific facts asserted in that case, and recognizes that, for some jobs, telecommuting still could allow an employee to perform essential functions. Further, the initial judicial panel rejected summary judgment for the employer, and the en banc decision included a dissent. Thus, a different court might reach a different conclusion on similar facts.

Against this background, employers should carefully review disability accommodation requests on a case-by-case basis, with a detailed evaluation of job functions.

Tips for Analyzing Work-From-Home Accommodation Requests

When faced with a disabled employee's request to work from home, an employer should first evaluate whether telecommuting actually would address the employee's stated limitations. For example, if an employee indicates that she is unable to concentrate while adjusting to a recent medication change, working from home should not improve her ability to perform the job. Unless the employee points to specific problematic distractions in the workplace, a leave of absence, either under the Family and Medical Leave Act (FMLA) or as an ADA accommodation, may be more appropriate. See Employer-Provided Leave and the Americans with Disabilities Act.

Similarly, even if working from home would address an employee's limitations, an employer may choose an alternative, equally effective accommodation. In the above example, if the employee indicates that noises in the workplace are the root problem, the employer might choose to eliminate the distracting noises rather than allow the employee to telecommute. For example, the employee could work temporarily in an enclosed office space while adjusting to her medication change. Of course, the alternative accommodation should not be perceived as retaliatory (such as sending the employee to an office location without air conditioning). Further, if non-disabled employees have been allowed to work from home in the same position, denying a disabled employee the same option could lead to discrimination issues.

Ultimately, if working from home is the only possible accommodation, the employer should determine whether being present in the workplace is an essential function of the employee's job. For some jobs, presence at work is obviously needed, such as manufacturing or driving positions. For closer calls, although not dispositive, the employee's job description is a factor that courts and the EEOC review. Also, a discussion with the employee's direct manager may help clarify exactly how the employee's absence will affect her work duties. Past history in the same or similar job categories is also a factor. If other employees with similar duties have been allowed to work from home, this could undermine any argument that workplace presence is essential.

In some cases, the employer may reject telecommuting as an accommodation because it imposes an undue burden on the employer. However, this is a very high standard. Employee morale or anticipation of other employees' work-from-home requests typically will not meet this standard. Rather, the employer must show significant cost or disruption to the business. A more fulsome discussion of undue burden considerations is outlined in the EEOC's Enforcement Guidance. See Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act.

Planning Ahead for Employee Requests to Work Remotely

Employers can prepare for work-from-home accommodation requests.

 

Employers should review and regularly update job descriptions to ensure that they accurately reflect current duties. If presence in the workplace is an essential work function, the job description should address this requirement in detail. Key functions requiring onsite attendance could include, for example, in-person meetings with customers, or the need to coordinate tasks with other employees. Front-line managers can provide valuable input into the description of job duties, as they often have the best information regarding employees' actual day-to-day work.

Employers who allow employees to work remotely should consider adopting a formal telework policy. Doing so provides a centralized process for evaluating accommodation requests, which can ensure consistency. The policy also can address various practical issues, such as use of the employer's equipment and work hours expectations. Employers should confirm that managers understand the employer's procedures for approving work-from-home requests, so managers do not allow employees to work from home "off the grid."

As already discussed, employers also should consider the ramifications of allowing non-disabled employees to work from home. Such "precedent" could affect the analysis of essential job duties if a disabled employee in the same job category asks to work from home as an accommodation at the same rate of absence as non-disabled employees.

Additional Considerations When Employees Telecommute

When employees work from home as an accommodation or otherwise, many issues can arise beyond the ADA. Examples of possible key considerations include:

Supervision. Some jobs are a natural fit for telecommuting. Jobs that involve quantifiable expectations (such as number of calls taken, or deadline to complete a project) present fewer managerial challenges when employees are not directly supervised. Positions with less delineated goals or expectations can leave managers unable to effectively manage performance deficiencies or keep employees accountable. At the outset of any work-from-home arrangement, employers should develop specific strategies to manage employee performance.

Confidentiality. For some types of work, telecommuting could affect the employer's obligation to secure private third-party information. For example, allowing an employee to work from home with confidential medical information could affect the employer's compliance with health privacy laws. Employees also could have access to the employer's proprietary information or trade secrets when working remotely, with minimal or inadequate safeguards against third-party disclosure. Employers should implement appropriate procedures to address such problems.

Wage and Hour. Wage and hour issues also arise when employees work remotely. The fluid nature of work-related communications can challenge employers to accurately track work hours for employees who work from home. This can make it difficult to ensure that hourly workers are compensated for all hours worked and any overtime. Further, some states have employee break requirements, and compliance can be difficult to monitor for remote workers. Employers also may have an obligation to pay for costs that the employee incurs from home usage, such as a network or data line, or to reimburse employees for certain equipment.

Employee Safety. If an employee is injured while working from home, the employee may have a viable workers' compensation claim. Employers should evaluate their potential liability based on local law and workers' compensation coverage.

 

Additional Resources

-Telecommuting as a Reasonable Accommodation: A Primer and Guide to Responding to Telecommuting Requests

-Job Accommodation Network

-Questions and Answers on the Final Rule Implementing the ADA Amendments Act of 2008

-Regulations to Implement The Equal Employment Provisions of the Americans with Disabilities Act