August 21, 2006

Telecommuting (also called telework) can be a great boon, or a nightmare. Some employers find that it allows their employees to be more productive, and to get more work done. Other employers are reluctant to adopt such policies because they worry that employees will seek pay for goofing off at home. EEOC guidance and a federal court of appeals decision make clear that employers must consider telecommuting as an accommodation option for their disabled employees, no matter how they feel about the subject in general. This article explores the circumstances that may require employers to consider telecommuting as an accommodation for their disabled employees.

General Principles

The Americans with Disabilities Act requires all employers with 15 or more employees to provide reasonable accommodations to qualified employees with disabilities, to allow them to perform the essential functions of their jobs. Among the types of accommodation that employers must explore are modifying the work environment, and altering work schedules. Employers need not adopt the exact accommodations that their employees request, so long as they engage in a good faith interactive process, and offer a reasonable accommodation. Employers are not required to eliminate essential functions of a job in order to provide an accommodation.

Employers may establish conduct rules and performance standards that are reasonably related to the essential functions of their employees’ jobs. Although that includes insistence on regular attendance at the workplace, an employer must not punish a disabled employee for a minor infraction that results from a disability if the conduct does not interfere with performance of essential functions.

Telecommuting as a Reasonable Accommodation

In formal enforcement guidance, and in a fact sheet available on its website [http://www.eeoc.gov/facts/telework.html], the Equal Employment Opportunity Commission has maintained that employers must sometimes offer their disabled employees special consideration with regard to telecommuting options.

If the employer has a telecommuting policy, it may not deny telecommuting to a disabled employee telecommuting rights because of disability. In some instances, that may require waiving eligibility requirements. For example, says the EEOC, an employer may have to waive its one-year service rule for a new employee with a disability who needs to work at home.

A 2001 federal appeals court decision illustrates this principle. A medical transcriptionist suffered from an obsessive-compulsive disorder that made it difficult for her to get to work on time. Some days she was not able to get to work at all. Because her attendance problem resulted in disciplinary action, she was ineligible to work at home under her employer’s telecommuting policy. In ordering the transcriptionist’s case to go to trial, the Ninth Circuit Court of Appeals ruled: “It would be inconsistent with the purposes of the ADA to permit an employer to deny an otherwise reasonable accommodation because of past disciplinary action taken due to the disability sought to be accommodated. Thus, [the transcriptionist]’s disciplinary record does not constitute an appropriate basis for denying her a work-at-home accommodation.” [Humphrey v. Memorial Hospitals Assoc., 239 F.3d 1128 (9th Cir. 2001)]

The EEOC fact sheet also says that employers must consider telecommuting as a reasonable accommodation even if they do not have a telecommuting program. Another fact sheet [http://www.eeoc.gov/facts/accommodations-attorneys.html] about reasonable accommodations for attorneys provides an example of such a situation:

Emily has lymphedema which causes a buildup of lymphatic fluids in her right leg. The swelling is painful and makes it very difficult to walk more than very short distances, thus affecting Emily’s ability to commute to work. She provides documentation from her doctor confirming that the lymphedema is a chronic condition that has worsened in the last few months. The doctor does not expect any improvement in the next several months. As a reasonable accommodation, Emily requests that she be allowed to work from home three days a week. Much of her work involves writing and reviewing documents which she can do using a computer. She also can communicate with clients and colleagues through use of the phone and e-mail. The doctor’s letter explains that the three days working at home will ease the pain and make it tolerable for Emily to commute the other two days. Emily and her supervising partner work out an appropriate schedule and methods for ensuring that work is completed in a timely manner. Emily also agrees that, with notice, she can switch days working in the office if she needs to attend a meeting. The partner agrees to this schedule for four months as long as Emily’s condition does not improve. After four months, the partner will request an update on Emily’s condition to determine if she still requires telework as a reasonable accommodation or any modification to this arrangement due to any changes in her condition.

On the other hand, the federal courts have been reluctant to impose telecommuting on employers who do not have established telecommuting policies. As one appellate judge has explained, “[m]ost jobs in organizations public or private involve team work under supervision rather than solitary unsupervised work, and team work under supervision generally cannot be performed at home without a substantial reduction in the quality of the employee’s performance. [Vande Zande v. Wisconsin Dep’t of Admin., 44 F.3d 538 (7th Cir. 1995)]

What Employers Should Do

Have a formal policy on telecommuting

Employers should adopt and distribute to their employees a formal policy on telecommuting, even if the policy is that there should not be any telecommuting. It is much easier to defend a decision based on application of a pre-existing written policy, than one based on a manager’s spontaneous assessment of the right thing to do. Having a written policy makes it much less likely that an employee will challenge a decision to deny telecommuting.

Re-examine existing job descriptions

If the employer wishes to deny telecommuting to its entire workforce, or to certain types of employees, it should review the statements of essential functions in the relevant job descriptions. If the job description identifies a set of functions that can easily be performed at home, a court might rule that the employer should offer telecommuting as an accommodation. If it describes functions that employees can only perform at the regular workplace, it will provide justification for denying telecommuting.

If you limit availability of telecommuting, be ready to modify the eligibility requirements

Both the EEOC and the federal appellate court require preferential treatment for disabled employees who may not qualify for established telecommuting programs. Managers and supervisors must avoid mechanical application of eligibility rules when a disabled employee asks to telecommute.

Think of creative alternatives to telecommuting

The employer’s obligation is to provide a reasonable accommodation, not the exact accommodation that the employee requests. If an employee has difficulty getting to work, or performing work at the workplace, explore alternatives. The employee may be able to get to work with a different schedule, or if allowed some flexibility in starting or ending times. Modifications to the work environment or to equipment may allow the employee to report to the workplace instead of remaining at home.