Does the Americans with Disabilities Act (ADA) require you to allow telecommuting? If the employee’s job, like most jobs, involves attendance and teamwork as essential functions, the answer is likely no. However, more and more employers are allowing telecommuting, and most employees welcome the opportunity to telecommute.
If an otherwise qualified employee has a disability, you cannot reject telecommuting out of hand, even if you have no other telecommuters. The ADA requires employers to engage in an interactive process to evaluate a potential reasonable accommodation to the disability. So, be prepared with an established procedure to evaluate the request closely to be in line with the ADA.
What to Do
If you receive a request for a telecommuting arrangement based on a disability, consider the following steps:
1) Is the employee disabled?
A telecommuting request may by your first notice of a disability and you are entitled to get the details. Under the ADA’s interactive process, the employer should discuss the employee’s limitations, requirements, and duties—focusing on the employee’s abilities and job duties. The employer can request documentation or input from a healthcare provider to substantiate the condition. Is the condition temporary or long term? Examples of conditions (from some actual cases) that have raised ADA-based telecommute issues include: asthma and COPD aggravated by certain smells in the workplace, irritable bowel syndrome, depression and anxiety attacks exacerbated by the workplace, and Delayed Sleep Phase Syndrome.
2) What are the essential functions of the employee’s job?
Would telecommuting actually work for this particular employee? Are physical presence, in-person communication, and teamwork essential functions of the job? Does the employee have the technological infrastructure at home (computer, dependable internet access, printer, etc.) to do his or her job? Do you have the IT capabilities and overall resources to make the arrangement viable? How about work-related travel for the employee? And there may be confidentiality concerns if the employee’s job requires the handling of sensitive or proprietary information outside the workplace. Whether physical presence is an essential requirement of the employee’s position – a fundamental duty as opposed to a marginal duty – will be a critical determination. Remember that you do not have to remove any essential job duty to allow an employee to work at home. Further, courts have held that only the employer, not the employee, gets to determine what job functions are essential.
In this arena courts examine the job duties and whether physical presence is essential. The has found that an employer did not have to allow an employee with irritable bowel syndrome to telecommute and commented that “regular, in-person attendance is an essential function … of most jobs, especially the interactive ones.” A year or two later, that same court remarked that while regular attendance might not be an essential function of every job, exceptions “will be relatively rare.” Other courts, including the Fifth Circuit and a district court in Pennsylvania, have found that regular attendance is an essential function of an employee’s job. Other courts, including the 11th Circuit and the D.C. Circuit, have been a bit friendlier to telecommuting and required a more stringent, fact-specific inquiry for the employer to deny it as a reasonable accommodation. Because a job’s specific requirements will be examined closely, it is a good idea to regularly review and update job descriptions to fully reflect the current duties. Written job descriptions, along with statements from the employer, will be considered as evidence of a job’s essential functions.
3) Are there other options besides telecommuting?
Would moving the employee to another location at work, restructuring the job, or a modified work schedule solve the problem? Notably, even the EEOC acknowledges that an employer does not have to allow telecommuting if there are other reasonable, equally effective accommodations available, even if telecommuting is the employee’s preferred choice. Employers should carefully assess whether telecommuting resolves the workplace issue and if it is the only accommodation available. If working from home is the only possible reasonable accommodation, you will have to determine whether physical presence in the workplace is an essential function of the job.
4) Don’t forget to consider transfer to a vacant job.
If you can’t provide the requested telecommuting accommodation, remember that you have to consider whether you have a vacant position the employee can perform, with or without an accommodation. Although telecommuting may not work in the employee’s current position, be sure you don’t have vacancies (even at lower pay) that would permit it. If you don’t have vacancies, you don’t have to create one.
Several other points need to be considered in a potential telecommuting arrangement:
- Consider wage and hour concerns. If the employee is non-exempt under the FLSA, put procedures in place to limit and approve overtime. The FLSA applies just as much in a telecommuting context as it does with the traditional workplace.
- Be consistent. Your determination as to the disability-related telecommuting request should be consistent with the situation for other employees. In other words, if a non-disabled employee in the same position has been allowed to telecommute, and the disabled employee’s request is denied, that could create a problem.
- Think about a policy. Employers who are dealing with telecommuting requests (both for disabled and nondisabled employees) should consider a formal telecommuting policy. It needs to address a number of issues, such as workers’ compensation coverage and who is responsible for managing the arrangement.
With technological advances and many industries becoming increasingly decentralized, requests for telecommuting could become more frequent. With that in mind, employers need to establish a well-thought-out procedure for addressing ADA-related requests for telecommuting accommodations.