Telecommuting as a “Reasonable Accommodation” Under the ADA

With the use of the internet and advancements in technology, it has become commonplace for employees to work from home or outside the office (so-called “telecommuting”). In fact, many employees accomplish a great deal of work while traveling or during personal time at home. The question arises: Is an employer required to allow an employee to work from home due to a qualifying disability under the Americans with Disabilities Act (ADA)?

In EEOC v. Ford Motor Co., the US Court of Appeals for the Sixth Circuit reinstated the plaintiff’s claims that the employer failed to accommodate her request to telecommute to work and then retaliated against her in violation of the Americans with Disabilities Act (ADA). In reversing the dismissal, the Sixth Circuit agreed with the EEOC that, given the advances in technology, there was a genuine issue of material fact whether the plaintiff’s physical presence at work was essential to her job as a resale buyer and that a reasonable jury could find that Ford retaliated against her when it disciplined and terminated her shortly after the EEOC charge was filed.

The Equal Employment Opportunity Commission (EEOC) has made it clear that it views telecommuting as a reasonable accommodation that must be considered. This is true even if the employer does not have a policy regarding telecommuting. Employers are obliged to determine whether it is reasonable under the circumstances. There are many jobs, such as driving a taxi, construction work or similar occupations, where working from home is not an option. However, many jobs fall within a grey area where it may be possible for the employee to fulfill some or all of his/her job requirements from home.

According to the EEOC, employers must consider several factors:

• Will the employer have the ability to supervise the employee?
• Does the employee’s position require him/her to interact or work with other employees?
• Can the employee’s duties be accomplished at home?
• Does the employee’s job require face-to-face interaction with customers or clients?
• Can the equipment or tools needed by the employee to accomplish his/her job requirements be replicated at home?
• Will the employee need immediate access to documents or other information located only in the workplace?

As we recently reported, New Jersey has changed the law of disability when it comes to pregnancy.  New Jersey’s Law Against Discrimination (NJLAD) now requires that employers accommodate pregnant employees even when they cannot perform the essential functions of the job.

Employers must always make decisions according to the facts of each unique case. If your business is faced with making this type of decision, it is wise to seek legal advice to help ensure your compliance with disability laws such the ADA and the NJLAD.

If you have any questions about the issues discussed or would like to discuss your company’s telecommuting policies, please contact me or the Scarinci Hollenbeck attorney with whom you work.