As we’ve previously reported, with advances in technology, telecommuting may be becoming a more viable reasonable accommodation under the Americans with Disabilities Act. The Equal Employment Opportunity Commission (“EEOC”) has been on record advocating this position for well over a decade, and the other week, the Sixth Circuit Court of Appeals issued an opinion that could pave the way for more telecommuting requests.
The Sixth Circuit’s opinion in E.E.O.C. v. Ford Motor Co. held that an employee’s request to telecommute four days a week could be a reasonable accommodation for irritable bowel syndrome, noting that technology has advanced to the point where it’s not unusual that employees can effectively perform their jobs from home. (For a more in-depth analysis of the Sixth Circuit’s decision, click here.)
Courts, including the Sixth Circuit, have held that attendance at work is often an essential requirement for most positions. Nurses, for example, cannot treat patients from home. However, as this recent decision opined, with new technology, “attendance” is not necessarily synonymous with “physical presence” in the workplace. Employees can make client phone calls just as easily from home, in some cases, or be on-line to answer questions from a supervisor or co-worker during the workday. In short, for some companies and some jobs, employees can be there…without being “there.”
Although not reaching a broad-sweeping conclusion about the efficacy of telecommuting, the Court’s analysis signifies the importance of re-thinking job requirements as business requirements and technology continue to evolve. Further, it highlights that courts may carefully scrutinize employers’ reasons for denying telecommuting as a reasonable accommodation. Simply articulating that an employee needs to be present at work to be part of “team-building” or to attend group meetings, for example, may not carry the day for some jobs.
But at its core, this ruling doesn’t change what we already know: that employers need to engage in the interactive process with employees requesting accommodations for a disability. We previously discussed several key factors to evaluate when considering whether working from home can be a “workable” accommodation. Those considerations remain essential when responding to an employee’s request for a reasonable accommodation.
Even without a specific request to work from home, now may be a good time to re-examine your company’s telecommuting policies (if any), employee practices, and job descriptions. For instance, do employees currently work remotely (whether officially or unofficially)? Is being physically present at work—e.g., interfacing directly with customers/clients, on-the-job supervision of employees—integral to performing a job? Does your company have technology that enables employees to work outside of the office?
To be sure, responding to requests for accommodation will always necessitate a case-by-case assessment. But, as telecommuting receives more attention from the EEOC, courts, employers and employees, understanding the answers to these questions now, and updating policies and bona fide job requirements, may help in responding to any telecommuting requests later.