Quirky Question #232, We Can Require Our Employee To Work At The Office, Right?

by Dorsey & Whitney LLP
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Question:

We are a medium-sized Minnesota employer.  Our lead accountant recently spoke with our Director of Human Resources and requested to work from home several days a week due to a medical condition.  We believe his condition is serious, but think we can figure out a way for him to continue in his current role.  That said, we think the telecommuting request seems somewhat unusual and would like to come up with other alternatives.  What should we do?

Answer:

By Jessie E.R. Mischke and Joel O’Malley

It’s been a little over a year since news hit the wires that Best Buy and Yahoo were reining in their telecommuting policies based on concerns that employees needed to be present in the office as much as possible to collaborate and connect with each other.  Critics attacked the changes as being outdated considering modern technology, and harder on women who are more likely to want to work from home than men.  Whatever the merits of the debate on how a company should set its overall telecommuting policy, when it comes to employees with disabilities, their need to telecommute must be looked at on a case-by-case basis, especially after recent developments in the law.  In short, with respect to your accountant, you should engage him in an interactive process to determine whether working from home is appropriate given the essential functions of his particular job and compared to other possible accommodations that might not be as hard on the company.

The answer to your question is governed by the Americans with Disabilities Act (“ADA”), which requires all employers with fifteen or more employees to provide reasonable accommodations to qualified job applicants and employees with disabilities. (Keep in mind that a number of states, including Minnesota, have state laws prohibiting discrimination and retaliation in the workplace on account of disability status.)

Assuming the accountant’s condition falls within the scope of the ADA and he is a “qualified” individual, e.g., he will be able to perform the essential functions of his position with or without a reasonable accommodation (which seems to be the case), you must provide him a reasonable accommodation unless doing so would pose an undue hardship to your company.  To make this determination, you should work with the accountant to gather information about his condition and his request.  The Equal Employment Opportunity Commission (“EEOC”) – the agency responsible for enforcing federal laws that prohibit discrimination in the workplace – emphasizes that employers must pursue this “interactive process” on an individualized basis, in each and every case where an accommodation is requested.

With respect to the legitimacy of the accountant’s work-from-home request, in prior years many courts considered working from home an extraordinary accommodation, appropriate only in exceptional cases.  Over the past decade, however, the EEOC has consistently emphasized that working from home may be an appropriate accommodation (and not just in extraordinary situations).

In February 2014, the EEOC reiterated its position regarding telecommuting requests in an informal discussion letter, published in response to an anonymous inquiry regarding a sample reasonable accommodation policy and model forms. Commenting first on the policy and forms, the EEOC emphasized that because the ADA mandates an individualized assessment in every case, it is “difficult to develop a policy and related forms that can address all variables.”  EEOC, ADA: Reasonable Accommodation, Feb. 25, 2014. As to the policy’s working from home language, the EEOC stated that the “suggestion that working from home is not required except in extraordinary circumstances may lead an employer to violate the ADA” because “[t]he EEOC recognizes telework as a form of reasonable accommodation.”  The EEOC further noted that the law on telecommuting accommodations “is far from settled.”

Building upon the EEOC’s position, in April 2014 the Sixth Circuit Court of Appeals refused to dismiss a case where an employee sought to telecommute to accommodate her disability.  EEOC v. Ford Motor Co., No. 12-2848, (6th Cir. Apr. 22, 2014).  In Ford, the court observed that early cases addressing the work from home accommodation assumed that physical presence at the workplace was an essential function of most jobs.  The court went on to state, though, that with the rise of technology “attendance at the workplace can no longer be assumed to mean attendance at the employer’s physical location.  Instead, the law must respond to the advance of technology in the employment context . . . and recognize that the ‘workplace’ is anywhere that an employee can perform her job duties.”  Thus, while “many jobs [will] continue to require physical presence . . . it is no longer the case that jobs suitable for telecommuting are ‘extraordinary’ or ‘unusual.’”

These recent developments suggest it is unwise for employers to dismiss outright an employee’s request to work from home.  In Ford, the Sixth Circuit identified several factors employers should consider when determining whether physical presence at the office is an essential function of a particular position, including:

- the contents of the written job description;

- the organization’s business judgment;

- the amount of time spent performing the functions; and

- the experience of others in similar positions.

The EEOC also has identified factors employers should consider when assessing whether an employee can fulfill the essential functions of his/her position from home, including:

- the employer’s ability to supervise an employee’s remote work;

- whether certain equipment or tools can or cannot be replicated at a remote location;

- whether face-to-face interaction is necessary;

- whether coordination of work with others at the workplace is necessary;

- whether in-person interaction with colleagues, customers, or clients is necessary; and

- whether the individual needs instant access to documents or information available only at the worksite to perform his/her job.

EEOC, Work At Home/Telework as a Reasonable Accommodation, Oct. 27, 2005.

In sum, your organization should not dismiss the accountant’s request on the basis that telecommuting is an appropriate accommodation only in the rarest of cases.  Instead, you should engage the accountant in an interactive process to determine his needs and limitations, the essential functions of his position (including whether physical presence at the site is an essential function), why or why not a work from home alternative is appropriate given the essential functions, other possible accommodations, and whether any of the considered accommodations represent an undue hardship to the organization.

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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