As we have previously reported, working from home has become a popular and controversial alternative to the typical 9 to 5 work day. Some say modified work schedules make employees happier and more productive. Others have determined that the separation from side-by-side interaction actually lessens productivity or isn’t possible for a particular position. Whether you prefer working on the couch or the structure of an office, when it comes to employees with disabilities, an employer may need to consider whether telecommuting or working from home can be a reasonable accommodation.
That’s right, as a reasonable accommodation, employers may be required to allow certain employees to telecommute. Well, that is according to the Equal Employment Opportunity Commission (“EEOC”). The EEOC states that working from home can be a reasonable accommodation under the Americans with Disabilities Act.
So where does one begin? As with any request for an accommodation, employers must engage in an interactive process with the employee. In this context, the real question becomes whether an accommodation will enable the employee to complete the essential functions of the job, and whether the accommodation can be implemented without causing an undue hardship on the employer.
With all of the advances in technology, many jobs can be performed practically anywhere. As a result, more and more employers are offering telework programs. But the challenge is often determining whether actual presence in the office is an essential job function.
Many jobs simply cannot be performed at home. For example, a salesperson at a retail store must be physically present in the store to do the job. Likewise, employees who work in the hospitality and transportation industries may not be able to work from home. In such cases where physical attendance is an essential function, employers can rightfully deny an accommodation because it will pose an undue hardship.
But what about an accountant who sits in an office behind a computer 90% of the time? Or what about a marketing associate whose job it is to sketch the media for their company?
If an employer already offers telework to employees in certain positions, it must allow employees with disabilities an equal opportunity to participate in the program. The employer may also need to consider modifying its current telework policy to accommodate an individual with a disability. And even when other employees are not permitted to work from home, employers may still need to consider telework as a potential accommodation.
So how does an employer decide whether working from home can be a “workable” accommodation? The answer lies with the essential job functions and their application in practice.
First, identify the essential functions of the position. The job description is usually a good place to start – but make sure it is accurate. Second, decide whether some or all of those functions can be performed at home. Consider the following:
- How often will the employee need to work from home?
- Is face-to-face interaction with customers or clients required?
- Is face-to-face interaction or coordination with other employees required?
- Can the employee’s work be adequately supervised from home?
- Can documents and other information be accessed remotely?
- Must the employee use certain equipment that is only available at work?
- Can the necessary equipment be replicated at the employee’s home without causing an undue burden?
Remember, the employee need only work from home to the extent it will enable the employee to complete the essential job functions. And employers are not obligated to use an employee’s preferred accommodation. So, even if an employee asks to work from home as an accommodation, the employer can deny the request if a different accommodation would also allow the employee to perform the essential functions of the job.
For more information on telework as a reasonable accommodation, please contact the author, a member of the Absence Management and Accommodations Team, or your Seyfarth attorney.