Is Telecommuting Reasonable? Before Implementing Anti-Telecommuting Policies, Consider Your Exposure Under the ADA

May 2013 By Jessica Lingo

Tennessee Labor and Employment Newsletter

On February 22, 2013 an internal memo circulated at Yahoo! by Human Resources Head, Jackie Reses, proclaimed that telecommuting would no longer be acceptable at the company. According to the memo:

Speed and quality are often sacrificed when we work from home. We need to be one Yahoo!, and that starts with physically being together. Beginning in June, we’re asking all employees with work-from-home arrangements to work in Yahoo! offices.

Once the memo was leaked to media outlets, a national debate arose over the effects of such a policy. Buried amongst discussions on productivity and employee morale was the concern that poorly implemented no-telecommuting policies could negatively impact employers under the Americans with Disabilities Act (ADA). Indeed, such policies could inadvertently foreclose one avenue for an employee’s disability to be accommodated and expose employers to risks if they fail to recognize an employee request to telecommute as a request for disability accommodation. But is telecommuting really a reasonable accommodation for employees? Must employers allow certain employees to work from home? It depends.

Reasonable Accommodations under the ADA

The Americans with Disabilities Act requires employers to reasonably accommodate otherwise qualified employees with disabilities. An individual is “otherwise qualified” if he or she can perform the “essential functions” of the job with or without reasonable accommodation.[1] Whether or not an employee can be accommodated for a specific position is an individualized inquiry. While employers must accommodate individuals if such an accommodation is “reasonable,” employers need not accommodate individuals if such an accommodation would amount to an “undue hardship” for the employer.

The ADA provides examples of certain accommodations that may be reasonable. These include: “job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.”[2] The ADA defines “undue hardship” as “an action requiring significant difficulty or expense when considered in light” of such factors as:

1. The nature and cost of the accommodation…;
2. The overall financial resources of the facility involved in the provision of the accommodation…;
3. The overall financial resources of the employer…; and
4. The type of operations of the employer... [3]

Again, if an employee cannot perform the essential functions of the job at issue, either with or without a reasonable accommodation, he or she is not “otherwise qualified” for the position, and is not afforded relief under the ADA.

Even with the ADA’s guidance, whether or not an accommodation is reasonable, or whether such an accommodation will amount to an undue hardship is not an easy analysis. This holds true for telecommuting. The ADA does not explicitly include telecommuting in the list of reasonable accommodations, although it does note that adjustments to work policies or schedules may be in order.

E.E.O.C v. Ford Motor Company

While the ADA does not explicitly list telecommuting as a reasonable accommodation, the E.E.O.C. guidelines for disability accommodations under the ADA indicate that allowing employees to work from home is required: “An employer must modify its policy concerning where work is performed if such a change is needed as a reasonable accommodation, but only if this accommodation would be effective and would not cause an undue hardship.”[4] In 2012, the E.E.O.C. sought to enforce this position by suing Ford Motor Company, alleging that Ford failed to accommodate the disability of one of its employees, Jane Harris, by refusing to allow her to work from home.[5]

According to the facts in E.E.O.C v. Ford Motor Company, Jane Harris worked as a resale buyer for Ford.[6] Her job duties included purchasing steel and reselling it to individuals responsible for manufacturing and supplying vehicle parts to Ford’s plants.[7] Ford claimed that Harris’ position was “highly interactive” and asserted that interactions between resale buyers and purchasers were best conducted “face to face.”[8] Despite the interactive nature of her position, however, Harris had chronic attendance issues throughout her employment with the company.[9]

In 2009, Harris put in a request with human resources to be allowed to telecommute as an accommodation for her irritable bowel syndrome.[10] After examining potential ways to afford Ms. Harris this opportunity, Ford declined her request. The company claimed that Ms. Harris’ job required in-person communication, and if she could not be physically present, she was not otherwise qualified for her position. As a result, Ms. Harris sued the company, and the E.E.O.C pursued the case on her behalf. Ford responded by filing a Motion for Summary Judgment.

After reviewing the arguments on both sides, the Court determined that Ms. Harris could not perform the essential functions of her job with or without the accommodation of working from home. The Court accepted Ford’s assertions that in-person interactions were an “essential function” of the resale buyer position, stating: “The ADA requires courts to consider ‘the employer's judgment as to what functions of a job are essential.’”[11] Thus, because Ms. Harris could not be physically present at work, she was not “otherwise qualified” for the position.

In its analysis of whether telecommuting was a reasonable accommodation for Ms. Harris’ disability, the Court observed, “in general, courts have found that working at home is rarely a reasonable accommodation.”[12] Contrary to the E.E.O.C. guidelines on reasonable accommodations under the ADA, in Ford,the Eastern District of Michigan noted that working at home is only available for an “exceptional” class of jobs that do not “require the kind of teamwork, personal interaction, and supervision that simply cannot be had in a home office situation.”[13] Therefore, Ford suggests that telecommuting is not a mandatory accommodation under the ADA, and is only available in certain specific situations.

Conclusion

The Sixth Circuit’s recent discussion of telecommuting as a reasonable accommodation under the ADA provides guidance to employers in assessing whether or not to allow their employees to work from home. Despite this, employers might still need to defend their employment decision on telecommuting in a charge of disability discrimination. There are, however, certain steps employers can take to lessen the brunt of a costly lawsuit:

1. Draft Detailed Job DescriptionsDefine the job criteria in detail. Descriptions of positions assist in determining whether an individual is “otherwise qualified” for a job. Additionally, as noted in Ford, the ADA requires courts to consider “the employer's judgment as to what functions of a job are essential.”[14] Therefore, having a sound job description to rely on might help employers illustrate what job functions are “essential,” expediting the legal process.
2. Be Mindful of “Unwritten Job Policies”Make sure that job policies are written and read by employees. If regular attendance is required, have an attendance policy. Also be mindful of how policies are implemented. If employees in the same position are allowed to work from home and receive positive performance reviews, it could undermine the contention that regular attendance is mandatory.
3. Document Employee Requests and Employer ResponseWhen an employee requests an accommodation, document all attempts made to accommodate that employee. This will help show that the employer was willing to engage in the process and will assist the fact-finder in determining whether a requested accommodation was reasonable.
4. Listen to the EmployeeSometimes a request for a reasonable accommodation isn’t couched in ADA terms, i.e. “I would like a reasonable accommodation for my disability.” Indeed, an employee request could be more subtle. Misinterpreting a request for a reasonable accommodation could expose the employer to liability. Be sure to really understand what the employee is asking before turning them down.

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[1] 42 U.S.C. § 12111(8).

[2] 42 U.S.C. § 12111 (9).

[3] 42 U.S.C.A. § 12111 (10).

[4] EEOC Enforcement Guidance: “Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act,” http://www.eeoc.gov/policy/docs/accommodation.html#N_101_(last visited Mar. 11, 2013).

[5] E.E.O.C. v. Ford Motor Co., 11-13742, 2012 WL 3945540 (E.D. Mich. Sept. 10, 2012).

[6] Id.

[7] Id.

[8] Id.

[9] Id. at *2.

[10]Id. at *3.

[11] E.E.O.C. v. Ford Motor Co., 11-13742, 2012 WL 3945540 (E.D. Mich. Sept. 10, 2012) at *5 (citing 42 U.S.C. §

12111(8)).

[12]Id. at *6.

[13] Id. (citing Rauen v. United States Tobacco Mfg. L. P., 319 F.3d 891 (7th Cir.2003)).

[14] E.E.O.C. v. Ford Motor Co., 11-13742, 2012 WL 3945540 (E.D. Mich. Sept. 10, 2012) at *5 (citing 42 U.S.C. § 12111(8)).