In the last few weeks, many of you have probably been keeping tabs on the continuing debate on telecommuting and work-life balance, with Yahoo's Marissa Mayer and Facebook’s Sheryl Sandberg weighing in on the issue.  

Employers must consider, of course, the employee relations aspects of flexible work arrangements.  Balancing business needs and supporting employees seeking a better balance is no small task.  

However, there is another important legal angle, with respect to flexible work arrangements, employers must consider.  This relates to an employer’s obligation to provide such arrangements as a reasonable accommodation under the Americans with Disabilities Act (ADA).   

The EEOC takes the position that flexible work arrangements are a form of reasonable accommodation that an employer may have to provide to disabled employees.  See EEOC’s Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, October 17, 2002, http://www.eeoc.gov/policy/docs/accommodation.html#N_101_.  

However, courts evaluating an employee’s request to work from home have reached different conclusions as to whether it constitutes a reasonable accommodation.  In a recent federal court decision, an employer’s decision to deny a telecommuting arrangement was upheld and found not to violate the ADA. 

In EEOC v. Ford Motor Company, a Michigan federal court agreed with employer Ford that a telecommuting arrangement under the particular circumstances in that case was too impractical and that it did not need to offer the arrangement to an employee as an accommodation.  No. 11-13742 (E.D. Mich. 2012).  In its complaint, the EEOC alleged that Ford violated the ADA when it refused to let an employee participate in its telecommuting program as a reasonable accommodation for her gastro-intestinal condition, placed her on a “performance enhancement plan,” and discharged her only months after she complained about being denied an accommodation.  

In granting Ford’s motion for summary judgment, the court first reasoned that the employee, who had a pattern of excessive absenteeism, was not a “qualified individual” under the ADA because she was absent more often than she was at work and “basic attendance is a requirement of most jobs.”   

The EEOC argued that attendance was not an essential function of the employee’s job as a resale buyer because she could perform the essential functions of her position from home.  Although the employee professed that she could do the job from home via the phone and the computer, the employer disputed this assertion, noting that her request to work from home for up to 4 days per week was untenable because she needed to have face to face contact with buyers and sellers, visit supplier sites and engage in problem solving meetings on short notice.  The employer argued that her frequent, unpredictable absences from work negatively impacted her performance and increased the workload for colleagues.  The court deferred to the employer’s reasoned business judgment over the employee’s personal opinion and found that the resale buyer position did not lend itself to frequent, unpredictable workdays out of the office.  

Employers seeking to argue that telecommuting is not a reasonable accommodation under the ADA should examine some of the factors considered in EEOC v. Ford Motor Company:  

  • Does the job description as well as the actual job responsibilities demonstrate that the position requires regular, face to face contact? 
  • Will the employee’s lack of physical absence in the office prevent the employee from satisfactorily completing certain tasks? 
  • Will the employee be able to adequately supervise subordinates from home? 
  • Will the employee’s absence from work negatively impact the job responsibilities of others?  

Of course, an employer must always engage in the interactive process with an employee seeking an accommodation and must consider alternate accommodations even where the employee’s requested accommodation, such as telecommuting, proves untenable.  While the employer in EEOC v. Ford Motor Company was successful, it was due to the employer’s ability to show it had conducted an individualized assessment of the person’s position and the reasonableness of the requested accommodation.