Must I Allow My Employee to Telework?
With the rise of telecommuting, or as it is also known teleworking, many employers have been presented with requests for telework as a "reasonable accommodation" under the Americans with Disabilities Act (ADA).
You may be asking yourself exactly what telework is. Telework is known by a number of different names … telecommuting, flexible workplace, remote workplace, or even mobile workplace. In practice, telework is a work arrangement that allows an employee to perform work, during any part of regular paid hours, at an approved alternative worksite (e.g., home, telework center).
Under the ADA, employers are required to make changes to the workplace or job as reasonable accommodations for employees with disabilities to perform the necessary functions of their job under certain circumstances. Further, the regulations promulgated by the Equal Employment Opportunity Commission (EEOC) to carry out the ADA expressly permit telework for individuals with a disability as a reasonable accommodation. When telework is deemed a reasonable accommodation for the employee, the employer must provide this accommodation as long as it does not impose an undue hardship on the business operations of the employer.
In Equal Employment Opportunity Commission v. Ford Motor Co., 2014 WL 1584674 (6th Cir. April 22, 2014), the United States Court of Appeals for Sixth Circuit stated that “the class of cases in which an employee can fulfill all requirements of the job while working remotely has greatly expanded.” The Court, however, pointed out that employers should proceed with caution in this arena by stating “[i]t is important, at this juncture, to clarify that we are not rejecting the long line of precedent recognizing predictable attendance as an essential function of most jobs. Nor are we claiming that, because technology has advanced, most modern jobs are amenable to remote work arrangements. As we discussed above, many jobs continue to require physical presence because the employee must interact directly with people or objects at the worksite.” Subsequent 6th Circuit decisions have left many businesses confused as to the proper way in which to evaluate a telework reasonable accommodation request.
What does all of this mean to employers? The takeaway for employers should be that the reasonableness of utilizing teleworking should be assessed for each position, individually. Employers should engage in a reasonable accommodation collaborative process with its employees that make a request for a telework accommodation. Further, employers, as with any ADA reasonable accommodation request, should document the process in its entirety.
Developing procedures for requesting a telework accommodation, developing applications for the process, reviewing job descriptions, and evaluating a telework accommodation request can be daunting for most employers. The attorneys in Critchfield, Critchfield & Johnston, Ltd.'s employment law group are available to help you navigate any type of employee issue that your business may face.