Thursday, May 15, 2014

Is Telecommuting a Reasonable Accommodation?

If you have followed this blog for longer than a few days then you have probably already guessed the answer: Sometimes "yes" and sometimes "no." There are almost never easy answers in employment law.

The Sixth Circuit recently reversed a grant of summary judgment in favor of an employer and held that telecommuting may be a reasonable accommodation under the ADA (opinion here):
We have previously concluded that telecommuting is not a reasonable accommodation for most jobs, but that there may be "unusual case[s]" when telecommuting is reasonable because the "employee can effectively perform all work-related duties at home." Smith v. Ameritech, 129 F.3d 857, 867 (6th Cir. 1997) (internal quotation marks omitted); see also Tyndall v. Nat'l Educ. Ctrs., Inc., 31 F.3d 209, 213 (4th Cir. 1994). However, as we noted above, the class of cases in which an employee can fulfill all requirements of the job while working remotely has greatly expanded . . . . many jobs continue to require physical presence because the employee must interact directly with people or objects at the worksite. See, e.g., Melange, 482 F. App'x at 84 (custodian). We are merely recognizing that, given the state of modern technology, it is no longer the case that jobs suitable for telecommuting are "extraordinary" or "unusual." Vande Zande, 44 F.3d at 545; Smith, 129 F.3d at 867-68. When we decided Smith in 1997, we responded to the world as it then existed; however, in the intervening years, communications technology has advanced to the point that it is no longer an "unusual case where an employee can effectively perform all work-related duties from home." Smith, 129 F.3d at 867-68. In this case, we respond to the world as it exists now.
I thought it may be useful to dig up some case law from my jurisdiction (Middle District of Pennsylvania in the Third Circuit) on the issue:
In its brief, the Navy “maintains that in any company or any branch of the government, it is per se unreasonable for key employees who are expected to provide guidance and advice, problem solve, and interact with others, as was the case with Kiburz, to work from home.” (Def's Br. in Supp. 13.) Though the circuits do not treat work-from-home requests uniformly,3 the Court declines to adopt such a per se rule . . . . fn 3: Compare, e.g., Vande Zande v. Wisc. Dept. of Admin., 44 F.3d 538, 544 (7th Cir.1995) (adopting a presumption against working from home except in “extraordinary circumstances”) with Humphrey v. Mem'l Hosps. Ass'n, 239 F.3d 1128, 1136-37 & 1136 n. 15 (9th Cir.2001) (finding “no reason not to follow the approach taken by the EEOC in its Enforcement Guidance,” which is that “[w]orking at home is a reasonable accommodation when the essential functions of the position can be performed at home and a work-at-home arrangement would not cause undue hardship for the employer.”). See also Brianne M. Sullenger, Comment, Telecommuting: A Reasonable Accommodation under the Americans with Disabilities Act as technology advances, 19 Regent U.L.Rev. 537 (2006-2007) (identifying a “presumption-against-telecommuting approach” and a “fact-specific approach,” and advocating for the latter).
Kiburz v. England, CIV.A. 104CV2247, 2008 WL 2780650 (M.D. Pa. July 16, 2008) aff'd, 361 F. App'x 326 (3d Cir. 2010).

The takeaway: The Courts will examine the circumstances on a case-by-case basis. Some courts have applied something like a rebuttable presumption that telecommuting is generally not a reasonable accommodation. However, given modern technology, that presumption appears to be lessening if not disappearing altogether. If employers don't want to allow an employee to telecommute as an accommodation for a disability they'd better: (1) engage in the interactive process to identify alternatives; and (2) document the hardships of allowing employees to work from home.