You can’t phone it in – telecommuting usually not a reasonable accommodation

Companies occasionally receive requests from employees with disabilities to work from home – or “telecommute.” Working in your pajamas and slippers surely sounds tempting, especially if you are sick or disabled, but is an employer required to allow it?

A Michigan federal court recently surveyed recent cases on the issue and concluded that “in general courts have found that working at home is rarely a reasonable accommodation.”

In EEOC v. Ford Motor Co., Jane Harris worked as a buyer and had escalating performance issues. She also suffered from irritable bowel syndrome (a disturbing condition that seems to be more common with employees these days). As a result of her IBS, Harris began missing more and more work, contributing to declining performance and prompting her to request to work from home up to four days per week, to accommodate her disability.

Ford had a telecommuting policy, but nevertheless rejected the request, explaining that her job required “regular interactions with her team and with a number of contacts both inside and outside of Ford, and these interactions could not be adequately handled over the phone or via email. . . the spontaneous flow and exchange of information, which is critical to the group problem-solving component of her job, would be compromised if issues had to be put on hold until a conference call could be scheduled.”

Instead, Ford offered to move her desk close to the restroom (I am not making this up), or find her a different job within Ford that might allow telecommuting (great demonstration of a supportive employer). Harris rejected these offers, and sent an email complaining that the denial of her request violated Ford’s Americans with Disabilities Act policy. When Ford asked her to provide a written statement explaining her complaint (excellent move by Ford), she declined.

While the Americans with Disabilities Act (ADA) does require an employer to provide a reasonable accommodation to a qualified employee with a disability, and to engage in an individualized analysis of any such request, the court found against Harris and the EEOC, which sued on her behalf. First, her frequent absenteeism meant she was not “qualified” for the job (quoting a prior decision that an employer is not obligated to “tolerate erratic, unreliable attendance,” and concluding that “regular attendance is a basic requirement of most jobs”). Second, the court refused to second-guess Ford’s business judgment that the essential functions of the job could not be successfully performed working from home four days per week.

While there are examples of “exceptional” jobs, such as an outside salesperson or medical transcriptionist, that can be performed from home, the court noted numerous decisions concluding that working at home is rarely a reasonable accommodation “because most jobs require the kind of teamwork, personal interaction, and supervision that simply cannot be had in a home office situation.”

Employers still should conduct an individualized assessment whenever such requests are made, and engage in an interactive dialog with the employee, but in most cases working from home for all or most of the time will not be a reasonable accommodation. To solidify this position, employers should consider addressing the issue of whether working in the office or plant is necessary, and why, in the written job description.

Michael Homans is a Labor & Employment attorney and Chair of the Litigation Department at Flaster Greenberg PC. For more employment law updates, including news and links to important information pertaining to legal developments that may affect your business, subscribe to Michael’s blog, or follow him on Twitter @EmployLawUpdate.

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