When An Employee’s Home Is His Castle… And His Office – Telecommuting And Employer Responsibilities Under the ADA

by Julia Belagorudsky, Esq.

“I would like to work from home one or two days per week. I have a medical condition, and it would be helpful to my situation if I could telecommute.”

This is not an uncommon request, and while the answer, or at least what the answer that complies with the law, has never been black and white, it has recently become far less certain. This brief article explores the fundamental assessments an employer must make before responding to an employee’s telecommuting request.

The Americans with Disabilities Act (ADA), the federal law governing the provision of “reasonable accommodations” for individuals with disabilities, does not mandate that the employer offer the exact accommodation requested by the employee.¹ When it comes to a request to telecommute, the overwhelming majority of cases rejected, often with broad strokes and little in-depth analysis, that at-home work constitutes a reasonable accommodation under the ADA.² An oft-cited opinion of the Seventh Circuit holds that “[a]n employer is not required to allow disabled workers to work at home, where their productivity inevitably would be greatly reduced.”³ Recently, however, courts have tended to engage in a more fact-specific analysis, opting not to rely on established precedent that allowing an employee to work from home will only be a reasonable accommodation in extraordinary circumstances.⁴

Under the ADA, an employer is permitted to offer an alternative accommodation, but it must adequately address the employee’s unique needs and reasonably accommodate the disability. The Equal Employment Opportunity Commission states that “an employer may select any effective accommodation, even if it is not the one preferred by the employee.”⁵ The ADA provides that an employer with fifteen or more employees unlawfully discriminates against an employee if that employer does not make reasonable accommodations for an employee with a disability who is otherwise qualified for the position, unless the employer can demonstrate that doing so would cause it undue hardship.⁶ For purposes of this article, we will assume that the employee has a disability.⁷

To be eligible to receive a reasonable accommodation, a disabled employee must also be an otherwise “qualified individual”, which is defined by the ADA to mean an individual who, with or without reasonable accommodation, can perform the essential functions of the position that such individual holds or desires.⁸  The ADA expressly states that an employer’s judgment as to what function of a job are “essential” will be given consideration,⁹ expressly providing for the use of employer-prepared job descriptions, created prior to advertising or interviewing applicants for the position, as evidence of essential job functions.¹⁰

If an an employee has a disability and is a qualified individual, a court must then assess whether the request to telecommute is a reasonable accommodation. The ADA provides some guidance, stating that “reasonable accommodation” may include job restructuring, part-time or modified works 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.¹¹

Nevertheless, to the dismay of employers, but perhaps not surprisingly, the ADA does not offer a bright line rule. As is often the case, the answer depends heavily on the facts of each case, including the specific employee and disability, the employer’s business operations and the job functions of the employee. As usual, the case law, two recent cases in particular, offers insight into how the analysis is really made, and the direction the law may be taking.

In April 2014, the Sixth Circuit in EEOC v. Ford considered whether a telecommuting arrangement was a reasonable accommodation for an employee suffering from irritable bowel syndrome (“IBS”), a condition that causes fecal incontinence.¹² Although the Sixth Circuit vacated its decision and decided to rehear the case in August 2014, the April 2014 decision offers a critical insight into the court’s analysis of ADA telecommuting cases, and points to a trend toward recognizing telecommuting, under certain circumstances, as a reasonable accommodation.¹³

In EEOC v. Ford, the employee, Jane Harris, was hired as a resale steel buyer at Ford Motor Company in 2003, to act as an intermediary between steel suppliers and companies that use steel products to produce parts for Ford.¹⁴ The court stated that Harris was a consistently competent employee, whom her supervisors rated as “excellent plus” in annual performance reviews between 2004 and 2008. The position involved some individual tasks, but the essence of the job was group problem-solving, which required that a buyer be available to interact with members of the resale team, suppliers, and others in the Ford system when problems arose. Ford managers made the business judgment that such meetings were most effectively handled face-to-face, and that email or teleconferencing was an insufficient substitute for in-person team problem solving.

In February 2009, Harris formally requested permission to telecommute on an as-needed basis, up to four days a week, as an accommodation for her disability. At the time, Ford had in place a telecommuting policy that authorized “eligible” employees to work up to four days per week from a telecommuting site. The policy provided that all employees were eligible to apply for the telecommuting policy, but specifically stated that telecommuting was not appropriate for all jobs, employees, work environments, or even managers. Under this policy, several other buyers were telecommuting, but only on one fixed day per week. After meeting with Harris to discuss her telecommuting request and her job requirements, Harris’s supervisors concluded that her position was not suitable to telecommuting. Harris claimed that Ford’s decision constituted unlawful discrimination under the ADA. Ultimately, Ford terminated Harris’s employment in late 2009.¹⁵  In 2011, the EEOC filed a complaint against Ford, alleging that Ford violated the ADA by failing to accommodate Harris’s disability.¹⁶

On motion for summary judgment, the U.S. District Court in Michigan dismissed the EEOC complaint, holding that: (1) Harris was not a qualified individual because she could not perform the essential job functions, and (2) the requested telecommuting accommodation was not reasonable.¹⁷  Crucial to the lower court’s holding was that Harris could not perform the essential job functions from home, as needed, up to four days a week, and further, that such a telecommuting arrangement was not a reasonable accommodation for Harris’s particular position.¹⁸ In support of its decision, the district court noted that Harris’s request was for the right to work from home up to four days a week, and not on set days, and further noted that courts have rarely held that working at home is a reasonable accommodation.¹⁹

The Sixth Circuit Court of Appeals reversed the lower court, and remanded, holding that there were issues of fact on both the issue of whether Harris was otherwise qualified, and on whether the requested accommodation was reasonable. In assessing whether Harris was “otherwise qualified” for her position as a resale steel buyer,²⁰  the Sixth Circuit held that the EEOC had demonstrated that Harris was qualified for her position, based on job performance and positive performance reviews, but only if physical attendance at the worksite was not considered.²¹  Having proved this, the court held that the burden then shifted to Ford to prove that physical presence in the workplace was an “essential function” of the resale buyer position, thereby proving that, if she could not be present at the workplace, she was not a qualified individual under the ADA.²²

The court held that the EEOC had introduced evidence to support the claim that physical presence was not required for Harris’s position. The court emphasized that the principle that attendance was an essential requirement of most jobs was developed at a time when technology was such that the workplace and an employer’s brick-and-mortar location were synonymous.²³  The court further explained that as technology has advanced, attendance at the workplace can no longer be assumed to mean attendance at the employer’s physical location.²⁴

The court also held that the EEOC had presented sufficient evidence to raise an issue as to whether the work-from-home accommodation was reasonable. The court pointed to EEOC evidence that Harris’s job functions did not require physical presence for their performance, and that Ford permitted other buyer employees to telecommute. The court also noted that Harris had been willing to discuss telecommuting fewer than four days a week, but that Ford refused to discuss the matter further. The court held that if Ford objected to the requested accommodation of four days per week, it was Ford’s responsibility to engage in an interactive process to explore reasonable alternatives.

Finally, and in addition, the court also held that Ford had failed to prove the only possible remaining basis for obtaining summary judgment – that the telecommuting accommodation would result in undue hardship.²⁵  Here, the court cited to Ford’s existing telecommuting program, and its policy to absorb all costs for all employees approved to telecommute, and called the additional costs for Harris to work from home de minimis.

While the Sixth Circuit’s position on telecommuting as a reasonable accommodation is currently in flux, the Second Circuit Court of Appeals held in 2011 that commuting accommodations, including working from home, may fall within the purview of an employer’s obligations under the ADA.²⁶  In Nixon-Tinkelman, Barbara Nixon-Tinkelman suffered from several physical ailments, including cancer, heart problems, hearing impairment, and asthma. She worked for the New York City Department of Health and Mental Hygiene in the Queens office, until she was transferred to the Manhattan location. The transfer resulted in a longer and more difficult commute for Nixon-Tinkelman, and as a result, she requested multiple accommodations, including reassignment to a work location closer to her home, or in the alternative, a car, a parking permit, or permission to work from home.

The trial court held that an employer is not obligated to accommodate an employee’s commuting difficulty because accommodation requests related to an employee’s commute to and from work are not requests for reasonable accommodation within the meaning of the ADA. The Second Circuit reversed and remanded, holding that in certain circumstances, an employer might be obligated to assist in an employee’s commute by, for example, permitting work from home, providing a car or providing a parking permit. The Second Circuit has held that there is nothing inherently unreasonable in requiring an employer to furnish an otherwise qualified disabled employee with assistance related to his or her ability to get to work.²⁷

The Nixon-Tinkelman Court made no factual finding based on the record, but remanded for the lower court to determine whether it would have been reasonable for Nixon-Tinkelman’s employer to provide assistance related to Nixon-Tinkelman’s ability to get to work. The Second Circuit emphasized that the determination of whether an accommodation is “reasonable” must be made on a case-by-case basis.²⁸   The court made clear that employers cannot categorically deny requests for an accommodation to work from home or to receive other commuting accommodations.²⁹  The Second Circuit instructed the trial court to consider the number of employees employed by Nixon-Tinkelman’s employer, the number and location of other offices, other positions that may be available to Nixon-Tinkelman, whether Nixon-Tinkelman can be transferred to another office without undue burden to her employer, and the reasonableness of Nixon-Tinkelman working from home without on-site supervision.

Conclusions

The Sixth Circuit’s decision to vacate and rehear EEOC v. Ford suggests that it may qualify or retreat from some of its reasoning. Nevertheless, courts are becoming more willing to consider telecommuting as a reasonable accommodation, with many courts opting for a case-by-case analysis of whether being physically present in the workplace is indeed “essential.”

There are several lessons for employers from both EEOC v. Ford and Nixon-Tinkelman.

First, there is no bright line rule as to what constitutes a reasonable accommodation, and employers must undertake a fact specific investigation, on a case-by-case basis, of the employee’s needs, essential job functions and the reasonableness of allowing an employee to conduct unsupervised work at home in determining whether telecommuting is a reasonable accommodation.

Second, the two recent cases mentioned strongly indicate that times are changing, and that the courts are not likely to deem blindly that physical presence at the workplace, without any analysis or assessment of the evidence, is a job requirement, simply because the employer states it is or because courts have found so in the past.

Third, an employer faced with a request to telecommute as a reasonable accommodation cannot simply reject the request out of hand, or rely on broad generalizations about the importance of presence at the work site to support its decision. An employer must be prepared to engage in an interactive process with the disabled employee to find reasonable accommodations. During that process, the employer should be prepared to offer alternative accommodations. If the employer ultimately decides to refuse a requested accommodation, it must be prepared to show that it evaluated the employee’s request, had specific reasons for its rejection and offered alterative accommodations to address the employee’s specific needs.

Finally, employers should consider whether it is prudent to institute a written telecommuting policy. The adoption of a telecommuting policy could open to the door to an argument that the employer has demonstrated that physical presence is not an essential aspect of the job, thus, telecommuting is a reasonable accommodation. To the extent an employer decides to institute a telecommuting policy, the policy should be narrowly drafted to include particular job titles or roles to protect against an argument that all employees are entitled, and in fact, encouraged, to work from home.

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