Employers increasingly deal with an electronically-mobile
workforce. Policies addressing bring-your-own-device, (BYOD),
mobile office and flexible work schedules are becoming more common
in employee handbooks. One related issue is employee telecommuting.
It can be a win-win if an employer and employee agree that
telecommuting is viable in a given situation. It is not so simple
if an employee wants to telecommute, but the employer does not
agree for business or strategic reasons.
A recent decision issued on April 10, 2015, by the U.S. Sixth
Circuit Court of Appeals (EEOC v. Ford Motor Co.), serves
as a useful reminder to employers dealing with telecommuting
requests from employees. The Sixth Circuit is the federal appellate
circuit covering Ohio, Michigan, Kentucky and Tennessee, but the
case can also be instructive to employers in other
jurisdictions.
In EEOC v. Ford, the Court was faced with a situation in
which a Ford employee requested permission to telecommute as an
accommodation for her condition of irritable bowel syndrome. The
request contemplated the employee telecommuting up to four days
each week. Although the Americans with Disabilities Act (ADA) may
require job restructuring or modified work schedules as a
"reasonable accommodation" for an otherwise qualified
disabled employee, most jobs require some teamwork, personal
interaction and supervision that is simply unavailable in a home
office situation. In EEOC v. Ford, the employer denied the
employee's request on the basis that physical attendance in the
workplace was an essential function of her job. Although the Court
was divided in its decision, it ultimately determined that Ford did
not violate the ADA by rejecting the employee's request to
telecommute, because "regular and predictable attendance"
was an essential function of her job.
There are several takeaways from this decision that can be useful
to employers:
- Telecommuting and employee requests to telecommute are here to stay.
- Telecommuting may be a "reasonable accommodation" under the ADA.
- Employers can require actual physical attendance at work if it is legitimately deemed "an essential function" of a job.
- Employers should document that regular physical attendance is an essential job function and include it in any written job description.
- Employers should be consistent in the application of any telecommuting decisions and document such decisions.
Telecommuting can be a useful recruitment and retention tool to
assist valued employees on either a short-term or long-term basis.
However, telecommuting can raise numerous legal issues beyond the
ADA, including wage and hour, data security, employee privacy and
even workplace safety. Employers need to be sure to meet all
obligations, including ADA requirements, when considering
telecommuting requests.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.