Law: When is telecommuting a reasonable accommodation?

The modern workplace is becoming more than just the office. Telecommuting is a work arrangement in which an employee may spend part or all of the regular workweek at a location other than the employer's office.

The Internet and remote-access software systems have increased the ability of people to work from anywhere. However, is an employer required to consider telecommuting as a possible reasonable accommodation under the Americans with Disability Act (or as amended, or ADAA)?

Several months ago, the 6th Circuit Court of Appeals - covering Ohio, Michigan and other Midwest states, but not Iowa - issued a ruling requiring Ford Motor Co. to accommodate an employee with irritable bowel syndrome (which constitutes a disability under federal law) by allowing her to telecommute for up to four days a week.

The employee's lawsuit alleged that she could not drive to work or leave her desk without experiencing an urgent need to use the restroom. Ford managers had denied the telecommuting request because they believed, in their business judgment, that this employee's essential job functions - as a buyer who communicated between the steel suppliers and stamping plants - included face-to-face interaction.

The court disagreed, largely because Ford could not show that 'physical attendance” was an essential function of her job. While attendance itself almost always is an essential job function, the court recognized that technology had extended the workplace beyond the office's brick and mortar:

'When we first developed the principle that attendance is an essential requirement of most jobs, technology was such that the workplace and an employer's brick-and-mortar location were synonymous. However, as technology has advanced in the intervening decades, and an ever-greater number of employers and employees utilize remote work arrangements, 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, as it has in other areas of modern life, and recognize that the ‘workplace' is anywhere that an employee can perform her job duties.”

In Iowa's federal court system, there are at least three cases involving telecommuting, all of which have denied the employee's telecommuting request as unreasonable.

In one, the court declined the employee's request to work at home because the computer software necessary to her work could not be accessed remotely. In another case, the court also denied the telecommuting request because the employee was a manager and needed to be present at the plant to supervise and improve the product-line productivity.

In the third case, the court found telecommuting would have created an undue burden on the employer because it would have been forced to hire an additional worker to allow the other employee to telecommute. Further, it also would have created a risk of possible disclosure of confidential information, the court said.

Note that these decisions are not a blanket opposition to telecommuting. Rather, as in all cases involving requests for accommodation, a determination of 'reasonableness” depends on the facts of that case.

Each employee's circumstance requires an individualized assessment. And the law requires that an employer engage in a dialogue or 'interactive process” to confer and ultimately agree on a reasonable accommodation that meets both parties' needs.

Accordingly, while telecommuting may be the exception today, human resource managers should expect more requests to telecommute by employees. Once you allow some employees to telecommute, a court may assume it is reasonable for others who are similarly situated to expect the same opportunity.

If you are opposed to having your employees telecommute, make sure your job descriptions detail the need for an employee's physical presence in the workplace, whether for face-to-face interaction or otherwise. Document costs of remote access or monitoring telecommuting employees.

And remember that you must engage in an 'interactive process” if an employee requests telecommuting as an accommodation for a disability.

' Wilford H. Stone is with Lynch Dallas Attorneys at Law, wstone@lynchdallas.com