In the EEOC v. Ford Motor Company, the Sixth Circuit recently held that telecommuting could be a reasonable accommodation under the ADA for the employee at issue. Commentators have described the decision as everything from “ground breaking” to opening up the “flood gates” to telecommuting accommodation requests.
I am not surprised by the Sixth Circuit’s decision. I am a bit surprised by the reaction to it.
The EEOC has long held that working at home may be a reasonable accommodation under the ADA. In fact, if you search the EEOC’s website, you will see that, since 2005, there has been a whole page dedicated to telecommuting as a reasonable accommodation. http://www.eeoc.gov/facts/telework.html
In my experience, employers make three primary, and often fatal, mistakes in this area, beyond not knowing the threshold issue that working at home may be a reasonable accommodation.
First, some employers offer work-at-home arrangements only for employees who have been employed for a specified period of time, such as one year. That is fine for work-life flex arrangements independent of the ADA but does not work under the ADA any more than would considering time off as a reasonable accommodation only for employees with one year of service or more.
Second, some employer’s evaluate the requests made by the employee and, if it is unreasonable, stop at that. But the interactive dialogue applies to all reasonable accommodation requests and that includes those regarding telecommuting. Full-time working at home may not work. But working some days at home may. Employers need to explore partial work-at-home arrangements, even if the employee asks for working at home full-time.
Finally, some employers fail to apply and then document the criteria the EEOC has stated are relevant in determining telework as a reasonable accommodation. More specifically, the EEOC has stated on the above cited website page :
Several factors should be considered in determining the feasibility of working at home, including the employer's ability to supervise the employee adequately and whether any duties require use of certain equipment or tools that cannot be replicated at home. Other critical considerations include whether there is a need for face-to-face interaction and coordination of work with other employees; whether in-person interaction with outside colleagues, clients, or customers is necessary; and whether the position in question requires the employee to have immediate access to documents or other information located only in the workplace. An employer should not, however, deny a request to work at home as a reasonable accommodation solely because a job involves some contact and coordination with other employees. Frequently, meetings can be conducted effectively by telephone and information can be exchanged quickly through e-mail.
When evaluating a request to telecommute, employers are best to consider the criteria articulated by the EEOC. Regardless of whether the request can or cannot be granted, in whole or in part, employers should document the application of the criteria to the situation at issue.
Documentation is critical if the request is granted. It helps a favorable response from having unlimited precedent where it would not be reasonable.
Documentation is also critical to help defend a claim where the employer says “no” to the telework request. It is possible that the EEOC will not agree with the employer’s determination, but at least the EEOC will know that the employer relied on the right factors.
As with other ADA issues, employers are cautioned against drawing bright lines. These lines help to ensure consistency. But they are inconsistent with the individualized assessment mandated by the ADA so that they form the commonality of which class actions are made.
No, the 6th Circuit decision is not groundbreaking. But the publicity granted to it all but guarantees we will be seeing more telework accommodation requests in the days to come.