Is Telecommuting a Reasonable Accommodation?
I get this call pretty frequently. A client wants know whether it should accommodate an employee by allowing the employee to telecommute or work remotely. The answer, in typical attorney fashion, is "it depends." And it does.
An employer or the employee may suggest telecommuting as a reasonable accommodation under the ADA. And it may not be a bad idea. But be cautioned. While telecommuting has its benefits, an employee's productivity or performance can easily suffer when working from home.
There are no bright line rules for determining when telecommuting must be given as a reasonable accommodation. 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 inconsistent and provides little guidance for employers. Nevertheless, here are some things for employers to consider:
- Closely evaluate the disability and the requested accommodation. Job Accommodation Network - Askjan.org is a great resource for employers. One of the most important things to ask is whether the disability will 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 because the employee must be able to perform his or her assigned duties, whether on site or at a remote telecommuting location.
- Look at the job. Can the employee perform the essential job functions at home or remotely without imposing an undue hardship on the business? Does the employee supervise or monitor the work of others? Are face-to-face interactions required? Analyze the position's essential functions. If being at work is an essential job function, telecommuting may not be a reasonable accommodation.
- Look at the employee and their exemption status. Is the employee trustworthy? Does the employee have attendance issues or existing problems meeting work deadlines? If the employee is paid hourly, what safeguards are in place to limit work and not incur overtime costs?
Reasonable accommodations for disabilities are complex, and no two cases are the same. Before an employer rejects – or accepts – remote work as a reasonable ADA accommodation, they should carefully review the job duties, the employee's past performance, and whether remote work is likely to be mutually beneficial. Employers also need to consider the ramifications of allowing one employee to work remotely, but not others. Employers should reach out to employment counsel to assist in navigating this complex process.
About the Author: Alejandro Pérez is a partner at the Phoenix law firm of Jaburg Wilk. He assists clients with employment law issues including hiring, termination, employee discipline, paid sick time, leaves of absence, wage and hour compliance, and whistle-blower liability.