Is telecommuting a reasonable accommodation? It depends.

Here are 10 questions to help you think it through.

The Americans with Disabilities Act requires, in appropriate circumstances, that employers make reasonable accommodations for employees with disabilities. A common question is whether it is "reasonable" for an employer to let an employee work from home as a reasonable accommodation. 

I last wrote about this in 2015, when the U.S. Court of Appeals for the Sixth Circuit held in EEOC v. Ford Motor Company that Ford did not have to allow an employee with severe irritable bowel syndrome to telecommute.

I agreed with the court based on the circumstances of that case, even though I am generally very pro-telecommuting and do it quite a bit of it myself.

The "office away from office" of your humble blogmistress, featuring Zsa Zsa, my legal assistant.

On the other hand, most courts say that employers can't simply dismiss outright a request for telework as a reasonable accommodation, and that makes perfect sense, too.

So, let's say an employee comes to you and says that she has a medical condition that requires telecommuting. Here are some questions you should ask:

FIRST STEP: Assess the employee's medical condition and restrictions

The first thing you need to know in assessing a request for telecommuting as a reasonable accommodation is why the employee is asking for it.

No. 1: What exactly is the employee's disability or medical condition, and how does being onsite (at the workplace) affect it? As an employer, you have the right to this information when an employee asks for any ADA accommodation.

No. 2: Does the employee have documentation from a health care provider with expertise in the appropriate field/specialty, confirming both the condition and the provider's opinion that a telecommuting arrangement would be helpful? Although the Family and Medical Leave Act sharply limits employers' ability to get follow-up information or information from providers other than the employee's usual caregiver, the ADA reasonable accommodation process is not nearly so strict. For example, if your employee brings you a note from her chiropractor saying that she needs to telecommute full time because of her irritable bowel syndrome, you would generally have the right under the ADA to send the employee to a gastroenterologist to properly diagnose the IBS and recommend appropriate accommodations. (You -- the employer -- should pay for the visit, and you should also provide the specialist with relevant information about the employee's job duties and work environment.)

No. 3: Do you have an adequate understanding as to what, in the opinion of the employee and her health care provider, a telecommuting arrangement would be expected to accomplish? In other words, do you understand their position as to how and why telecommuting would be helpful? (You don't have to agree with it, but you ought to at least be able to comprehend it.)

STEP TWO: Assess the job

Not every job is suited for telecommuting. If the employee assembles cars in a factory or waits on customers at a retail store, the work can't be done from home. On the other hand, many jobs can be done just as well from home -- maybe even better. You need to know which type of job you're dealing with.

No. 4: Is the employee's job the type that requires an onsite presence, or can it be done about as easily and well from a remote location? Be sure to take into account any need for work-related travel. In addition to manufacturing and retail jobs, many supervisory jobs may preclude telecommuting because of the need for the supervisor to monitor performance, to set an example for the employees, and to be immediately available to any employees needing help. On the other hand, employees whose work is primarily done on a computer or phone with minimal need for in-person interaction -- researchers, IT people, analysts, writers, for example -- may be able to do just fine from a home setting.

Of course, many jobs require a mix of "face time" and "quiet time," during which the employee can work remotely. Whether this type of job can be adapted for someone who needs telecommuting as a reasonable accommodation will depend on how important the "face time" is, and what percentage of the work week the employee needs to telecommute.

No. 5: If the employee works remotely, will it be possible for the employer to adequately monitor the employee's punctuality, industry, and quality of work? This is obviously a very big deal.

STEP THREE: Assess the individual employee

If the job lends itself to telecommuting, then you will have to assess the ability of the particular employee to telecommute. 

"Quiet! Genius at work!"

No. 6: Does the employee have the necessary "infrastructure" at home? Does she have fast internet, peace and quiet, an ability to maintain confidentiality where necessary (by use of a VPN, for example), reliable phone service, a decent laptop computer, electricity, etc? If the employee does not have certain essential equipment or service at home, are you willing to provide it to her at company expense?

No. 7: Does the employee work effectively with minimal supervision? You don't want to be paying your employee to surf internet porn or watch TV all day. Has this employee proven that she meets deadlines and fulfills her other responsibilities whether or not anyone is watching? If not, do you have a way to provide effective "remote" supervision?

No. 8: If the employee is non-exempt, can you trust her to accurately post her time, and to limit herself to an eight-hour workday unless she gets your prior permission to work more? You still have to comply with the Fair Labor Standards Act, so you don't want a "super-de-duper-dedicated" non-exempt telecommuter to be putting in 16-hour days while claiming only a standard eight-hour day because she loves you and the company so much. You also don't want telecommuters to be claiming eight-hour days of work when they really spent two and a half hours working, plus three hours at Amazon and live-streaming QVC, one hour watching The Young and the Restless, and an hour and a half taking the kids from school to Little League and walking the dog.

(If the employee is exempt, this amount of goofing off would be a concern for other reasons, but it's not an FLSA concern because you would have to pay the employee for the full workweek anyway, and you don't have to worry about overtime. Just make sure she's really exempt!)

STEP FOUR: Make your final decision

No. 9: In your opinion, could telecommuting possibly resolve the work-related issue created by the employee's disability or medical condition? If not, you don't have to allow it. But if it might, then move on to No. 10. 

No. 10: Decision time! Now that you've considered and confirmed the employee's medical condition, assessed the job, assessed the individual employee's equipment, integrity, and work ethic, and assessed whether telecommuting could arguably resolve the problem created by the employee's disability, do you believe that telecommuting could actually work? If so, go for it. If not, be sure to suggest and consider other accommodations, and thoroughly document the reasons you decided that telecommuting would not work. 

Happy Groundhog Day!

UPDATE (8:39 a.m. EST): Six more weeks of winter. Boo!

Image Credits: Laptop with Zsa Zsa by me. "Genius at work" from flickr, Creative Commons license, by Jan Kalab, Punxsutawney Phil billboard by Eddie~S.

Robin Shea has more than 20 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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