telecommuting under the ADA

Is Telecommuting a Reasonable Accommodation under the ADA?

The Americans with Disabilities Act (ADA) requires employers to make “reasonable accommodations” for employees who have disabilities. A reasonable accommodation would usually come in the form of providing some extra assistance or alterations to a job or workplace in order to enable the employee to perform his/her work. Employers are required to provide this type of accommodation unless doing so would pose an “undue hardship” on the organization.

In recent years, a growing number of disabled employees have requested the ability to telecommute (i.e., work from home) as an accommodation for their condition. This has coincided with a workplace in which technological advances have enabled more and more employers to allow employees to do at least some of their work from home. Today, a large percentage of organizations give their employees the option to telecommute, and some even require it.

This brings up the question, “is working from home considered a reasonable accommodation under the ADA?”

There is no straightforward “yes” or “no” answer to this question. The short answer is telecommuting can be a reasonable accommodation, but whether it is or not under the law depends on the needs of the employer and the specific circumstances of each case.

Earlier this year, a Bloomberg News analysis of 30 recent court rulings on telecommuting as a disability accommodation found that 70% of these rulings favored the employer, while only 30% were favorable to the worker.

An example of a decision that favored the employer was EEOC v. Ford Motor Company (2015). In this case, the Sixth Circuit Court of Appeals ruled that Ford did not have to allow an employee who had severe irritable bowel syndrome to work remotely. The court agreed with Ford’s contention that regular and on-site attendance was an essential function of the employee’s job. It is also worth noting that in this particular case, the employee had never telecommuted previously, and she was asking for a permanent accommodation.

An example of a case that ended up before the same court and produced an opposite decision was Mosby-Meacham v. Memphis Light, Gas, & Water Division (2018). In this case, the employer’s in-house attorney asked for a 10-week telecommuting accommodation and her employer denied the request. The employee sued and won, and the Sixth Circuit Court of Appeals upheld her victory at the lower court.

One of the major differences in this case is that, even though telecommuting is not an official company policy, this same employee had been allowed to work from home previously for two weeks when she was recovering from surgery. Other employees had also been allowed to work from home before.

The employer argued that the in-house attorney’s job description included the ability to take depositions and represent the employer in court. The court acknowledged that this was part of her job description, but it also noted that she had never done either of these two tasks during the eight years she had been employed with the company. As such, they ruled that allowing her to work from home for a 10-week period was a reasonable accommodation under the ADA.

There are a few important takeaways from these cases that should be looked at when determining if an employee can legally request the ability to work remotely as a reasonable ADA accommodation:

The Core Job Function is Critically Important

The biggest question that must be answered when pursuing a telecommute accommodation (under the ADA) is whether or not working remotely will allow the employee to do his/her job effectively. Some jobs clearly require an on-site presence, and there is no getting around it. For example, if you are a cashier at a retail store, you have to be physically present at the store to do your job. Period.

But as we saw with the Mosby-Meacham v. Memphis Light case, there are some gray areas. In that case, there were some functions of the job that may have required a physical presence, but since the employee had never performed them, they were clearly not what would be considered “essential” or “core” functions. If something is listed in a job description and an employee goes several years without ever having to do it, can this task really be used as a reason to deny a telecommuting accommodation?

The Length of Time of the Accommodation Matters

In the EEOC v. Ford case, the employee was asking for an indefinite telecommuting accommodation, whereas in the Mosby-Meacham v. Memphis Light case, the requested accommodation was for only 10 weeks. In general, the longer time period that is requested, the more likely it is that the court will side with the employer and rule that the requested accommodation would be an undue hardship. Had the employee in the latter case asked to telecommute indefinitely, the court may very well have ruled differently. So clearly, the length of time you are requesting will make a big difference in whether or not you will be able to prevail in any legal claim you may need to file.

Previous Employer Precedent is a Factor

If an employer strictly prohibits telecommuting and has never allowed it in the past, then they have a much stronger argument to legitimately deny an ADA accommodation. If, on the other hand, an employer has a no-telecommute policy but they have made exceptions to this policy in the past, then they are treading on very dangerous ground to deny an employee a disability accommodation for something they have allowed other employees to do. This would look very much like discrimination, and courts would tend to look unfavorably at this practice.

The bottom line is that there is no hard and fast rule (yet anyway) as to whether or not telecommuting is a reasonable accommodation under the ADA. The courts have ruled both ways, and each accommodation request needs to be evaluated on a case-by-case basis.

Whenever possible, it is best for the employee and employer to work out a reasonable accommodation without the intervention of the court. But when an employer is not acting in good faith, it is in the employee’s best interests to speak with an experienced employment law attorney to discuss their rights and legal options.

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