Is Telecommuting Now a Reasonable Accommodation?

The laws prohibiting disability discrimination impose obligations on employers which go far beyond the mere avoidance of discrimination. In addition to refraining from discrimination, employers must also provide reasonable accommodation to an employee when doing so will enable the employee to perform the essential functions of his or her job, and must engage in an “interactive process” when an employee requests a reasonable accommodation. 

Most employers are familiar with the general prohibition of discrimination set forth in the disability discrimination laws, but many do not fully understand the obligation to provide reasonable accommodation or engage in the interactive process.  In general, California law requires almost all employers to “engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.”  Federal law creates a similar obligation. 

The purpose of the interactive process is to identify accommodations that may enable an employee to perform his or her job effectively.  The crux of the employer’s obligation is to participate in the dialogue cooperatively, and to seek and exchange relevant information openly, for the purpose of determining if a reasonable accommodation would enable an employee to perform his or her job at that time, or at a reasonable time in the future.  A recent decision from a federal appellate court highlights how many courts are interpreting employer obligations with respect to reasonable accommodation. 

In EEOC v. Ford Motor Co., an employee suffering from Irritable Bowel Syndrome asked to telecommute four days per week as a form of reasonable accommodation.  Ford declined her request because it deemed her position not to be suitable for telecommuting, but offered her the option of working from a cubicle closer to a restroom or seeking an alternative position in the company.  After the employee filed a Charge of Discrimination with the EEOC, the EEOC filed suit on her behalf. 

After the trial court ruled in favor of Ford, the appellate court reversed.  The appellate court concluded that Ford had failed to prove that presence at work was an essential function of the employee’s job or that telecommuting would cause an undue hardship.  Notably, the court stated that it was “not persuaded that positions that require a great deal of teamwork are inherently unsuitable to telecommuting arrangements.” 

The Ford decision reflects continued close scrutiny of employer justifications for denying accommodation, and demonstrates that courts are unwilling to defer to employers’ judgments with respect to reasonable accommodation in general, and the viability of telecommuting in particular.  In light of the intense scrutiny they may face when denying requests for telecommuting privileges from disabled employees, and the fact that courts have clearly stated that deviating from normal policies and procedures is the essence of reasonable accommodation, employers should carefully engage employees in a dialogue about their needs and the manner in which business operations may be impaired by telecommuting.  If they cannot articulate a convincing reason that the employee must be physically present at the employer’s facility to perform his or her job, the employer should seriously consider granting temporary telecommuting privileges as a form of reasonable accommodation.

In order to minimize the risk of potential claims, employers should not only comply with their obligations to engage in the interactive process, they should also utilize carefully drafted letters and memoranda to confirm that they have done so.  Cases focused on the interactive process and reasonable accommodation are particularly likely to involve disputes about “who said what to whom and when,” so documentation is even more critical than normal.  Employers are usually wise to work with counsel to craft documentation which can be used to demonstrate compliance with the law in the event a dispute arises. 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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