Telecommute to Work: When It’s a Reasonable Accommodation for Your Medical Condition
Working from home has become a popular option for many employees and employers in recent years. Modern internet makes it easier than ever for remote workers from across the state –and even around the world–to work together despite their physical separation. That said, there are still many traditional employers who do not allow telecommuting. But what about a scenario where an employee needs to work remotely due to a physical or mental disability? Do employees have a “right” under the law to telecommute?
Telecommuting and “Essential” Job Functions
The Americans with Disabilities Act as Amended (ADAAA) requires businesses with at least 15 full- and part-time employees to make “reasonable accommodations” for an employee with disabilities. What is “reasonable” depends on the facts of a given situation and must be examined on a case-by-case basis. The ADAAA requires the employer to engage in a good-faith “interactive” process with the employee to determine whether a reasonable accommodation exists. This is more than just a simple review of the request and a “yes” or “no” answer. During the interactive process, the employer and employee should work together to determine what, if any, accommodation should be provided. This means that the employee requesting the accommodation and the employer must communicate with each other about the request, the specific issue prompting the request, and alternative accommodations that may be effective in meeting the employee’s needs.
A critical consideration for any accommodation request is whether or not it will impact an “essential function” of the employee’s position. This is where telecommuting can get tricky. If an employee’s job requires them to maintain a physical presence in the office – say to meet with clients or coworkers on a regular basis – then the employer may use this as a consideration when deciding about telecommuting as an accommodation.. But as with defining a reasonable accommodation, what constitutes an “essential function” will vary based on each employee’s situation. For instance, in some scenarios, the employer may determine that 100% telecommuting is not reasonable, but perhaps the employee could telecommute three days out of the business week, reserving two days for in-office, to meet with clients and coworkers.
The employer must also consider whether telecommuting is viable. In other words, does the employee have the proper IT infrastructure to successfully work from home? And can the employer ensure that any confidential information is properly handled and secured?
Of course, an employer determining that the employee’s accommodation request is not reasonable, like the employee’s request for telecommuting, does not end the interactive process required by the ADAAA. The employer must still attempt to find some other reasonable accommodation for the employee’s disability. For example, it may be possible to modify the employee’s schedule, move them to a different office space, grant breaks, reassignments to another job, or otherwise restructure their job so they can continue working.
If a job transfer to a position where telecommuting may work is an option, this may be considered. To give a simple illustration, suppose a receptionist asks to telecommute because her medical condition makes it impossible for her to travel to the office each day. The employer rejects that request–because an “essential function” of the receptionist is to be in the office to greet guests–but instead offers to transfer the employee to a data-entry job that they could do from home.
Should Your Employer Have a Telecommuting Policy?
As telecommuting has become more popular–even for non-disabled employees–employers should strongly consider adopting a formal telecommuting policy as part of their employee handbooks. Such policies should be carefully drafted to address any potential legal issues that may arise from employees working from home, such as workers’ compensation and establishing what hours the employee must be available. A qualified employment law attorney can advise you on this and many other subjects related to telecommuting and accommodations under the ADAAA.