Telecommuting – working from home – is an option more and more workers are choosing as technology bridges the gap between home and office. Of course, not all roles lend themselves to telecommuting, and not all employers are amenable to it. When it comes to accommodations under the American with Disabilities Act, however, an employer may not have a choice in the matter.
In 2017, the EEOC updated the “Work At Home/Telework as a Reasonable Accommodation” Fact Sheet. According to the EEOC, there are a few factors an employer should consider in assessing whether it must allow an employee to work from home. Some include:
- If an employer does offer telework, it must allow employees with disabilities an equal opportunity to participate in such a program and may be required to waive certain eligibility requirements or otherwise modify its telework program for someone with a disability who needs to work at home.
- Changing the location where work is performed may fall under the ADA’s reasonable accommodation requirement of modifying workplace policies, even if the employer does not allow other employees to telework. However, an employer is not obligated to adopt an employee’s preferred or requested accommodation and may instead offer alternate accommodations as long as they would be effective.
- This determination should be made through a flexible “interactive process” between the employer and the individual. While the employer and employee may wish to discuss other types of accommodations that would allow the person to remain full-time in the workplace, in some situations, working at home may be the only effective option for an employee with a disability.
Current Job Descriptions Are Crucial
Recent case law analyzing this issue illustrates that it is often the subtle nuance of a workplace that will dictate the outcome. In February, the 6th Circuit in Mosby-Meachem v. Memphis Light, Gas & Water Div., 883 F.3d 595 (6th Cir. 2018), considered an attorney who sought to telecommute while she was required to be on bedrest due to pregnancy complications. While the company didn’t have a formal telecommuting policy, employees – including the plaintiff – often telecommuted. In this case, however, her employer refused the request, concluding that her physical presence was an essential function of her job. While the court acknowledged that there was some evidence showing that in-person attendance was an essential function of her job, there was enough conflicting evidence to allow her to go to trial, including:
- Several fellow employees and outside counsel testified that she could perform all of her essential functions working from home;
- She personally never tried cases in court or conducted depositions during her 8 years of employment with the company, despite the fact that her job description contained those tasks; and
- Her job description was based on a 20-year-old questionnaire and did not reflect changes in the job that resulted from technological advancements since that time.
But Don’t Update the Job Description During the Process!
The more recent case of Imam v. Cumberland Cty., 2018 WL 5305539 (E.D.N.C. Oct. 25, 2018) explores telecommuting and reminds employers to beware of any actions that could be viewed as retaliating against an employee with a disability who seeks an accommodation. In this case, the employee was a systems programmer in an IT department. Prior to his disability, the role had not previously included on-site duties, and the employee often telecommuted.
In August 2016, the employee, Imam, was diagnosed with deep vein thrombosis (DVT) and his doctor advised him to avoid driving for several weeks. He requested a two-week telecommuting schedule which was granted. After the telecommuting schedule ended, his employer proposed a change to his job description, adding operational duties which would require him to be on-site. Imam objected, arguing that the new duties would exacerbate his DVT and were excessive in light of other responsibilities that had recently been added to plaintiff’s job description.
Shortly after, the employee’s doctor provided a letter recommending that he avoid driving for an additional two to three months. Again, Imam requested a telecommuting schedule, but this time, the employer refused, concluding that the new operational duties would require Imam to be on site daily.
Imam sued claiming discrimination and retaliation under the ADA. The Court found that on-site attendance was not required when Imam was first diagnosed with DVT and did not exist at the time plaintiff first requested (and received) a telecommuting schedule. While the court acknowledged that the 4th Circuit (which includes Maryland, North Carolina, Virginia, and West Virginia) has not definitively determined whether telecommuting is a per se reasonable accommodation that employers must provide under the ADA, in this instance, Imam had sufficiently demonstrated that permitting him to work remotely would have been a reasonable accommodation. In addition, and perhaps most importantly, the court found that Imam had made credible allegations that his employer retaliated against him because of his disability by adding extra responsibilities to his job description.
Employers being faced with an employee’s request to telecommute should consider the following factors:
- How current is the employee’s job description? Keeping an accurate, up-to-date job description is vital in assessing whether telecommuting is a reasonable accommodation.
- Beware of changing the job description during the course of an employee’s disability, if the change might negatively impact the employee. Doing so may be considered retaliation.
- Does the employer allow other employees with similar job functions to telecommute, regardless of whether it is for a health concern or not? If the employer has a practice of permitting telecommuting, it will be hard-pressed to refuse it for an employee with a disability.
- Always, always, always follow the interactive process! There may be circumstances where an employer and employee can come up with at-work accommodations that can meet the employee’s needs, but only with a thorough interactive process can the parties discover the options that may exist.