Originally published in February 2002

Improvements in technology have undoubtedly made telecommuting—or teleworking, as the act of working at a location away from the office is now commonly called—more feasible. According to a survey released on October 23, 2001 by the International Telework Association and Council, one in five U.S. employees is now participating in some form of teleworking arrangement.

Supporters of telecommuting argue that it creates a higher level of job satisfaction, lower absenteeism, improved morale, greater productivity and allows for improved recruitment and retention. Opponents, however, suggest that the negative aspects of telecommuting include decreased supervisory control, employee isolation, reduced teamwork, and confidentiality concerns, as well as difficulties in complying with laws covering such areas as workplace safety, workers compensation, wages and hours, union organizing, and taxation.

Given the pros and cons of telecommuting, the question arises: may an employer be required to permit an employee to telecommute simply because improvements in technology have made it more feasible?

Under the provisions of the ADA,2 the answer is yes, in certain circumstances.

Covered employers are required by the ADA to provide a reasonable accommodation to an employee or applicant who is a "qualified individual with a disability."3 To be "reasonable," an accommodation must enable the individual to perform the essential functions of the position and must provide the individual an equal opportunity to enjoy the benefits and privileges of employment enjoyed by non-disabled individuals.4 An employer is not required, however, to provide an accommodation that eliminates the fundamental duties of a position, lowers production standards, or causes undue hardship.5

The issue of whether telecommuting constitutes a reasonable accommodation has been addressed by the courts on numerous occasions since the enactment of the ADA in 1990. In early court decisions, the majority view was that telecommuting was presumptively unreasonable. The comments of the Seventh Circuit Court of Appeals in Vande Zande v. Wisconsin Department of Administration6 perhaps best exemplify the courts' attitude toward the unreasonableness of telecommuting as an accommo-dation under the ADA:

An employer is not required to allow disabled workers to work at home, where their productivity inevitably would be greatly reduced. No doubt to this as to any generalization about so complex and varied an activity as employment there are exceptions, but it would take a very extraordinary case for the employee to be able to create a triable issue of the employer's failure to allow the employee to work at home.7

More recently, however, the presumption against telecommuting as a reasonable accommodation has been criticized by courts which emphasize that reasonableness must be determined on a case-by-case basis. These courts, along with the EEOC, are instead assuming that working from home may be a reasonable accommodation, such that a fact-specific inquiry is necessary to determine whether an employer's refusal to allow a disabled employee to work at home violates the ADA.8

Nevertheless, courts still place a heavy burden on the employee to demonstrate that telecommuting will allow the employee to perform the essential functions of the job. Courts consider the exact nature of the employee's position, and weigh such factors as whether available technology is compatible with the employer's operations; whether supervision is possible; whether confidentiality and safety concerns can be addressed; and whether the employer has permitted other employees to telecommute or has a policy on telecommuting.9

In light of the recent decisions demonstrating courts' greater willingness to consider telecommuting as a reasonable accommodation under the ADA, employers must be careful to not dismiss a disabled employee's request to work at home out of hand. Instead, an employer must engage in interactive communications with an employee and analyze the employee's request giving consideration to the factors outlined above.

Endnotes:

1 This article is one in a series of articles that cover various topics implicated by the accessibility and use of technology in the workplace.

2 42 U.S.C. §§ 12101 et seq.

3 See Id. §§ 12101-12117, 12201-12213; see also supra n.2.

4 See 29 C.F.R. § 1630.2(o) & pt. 1630 app. 1630.9 (1997); Equal Employment Opportunity Commission ("EEOC") Employment Guidance: Reasonable Accommodation and Undue Hardship under the ADA ("Enforcement Guidance"), 8 FEP Manual (BNA) 405:7601-7637 (1999).

5 See 42 U.S.C. § 12112(b)(5)(A); 29 C.F.R. §§ 1630.2(n) & 1630.2(p); 29 C.F.R. pt. 1630 app. 1630.2(n). An analysis of "undue hardship" requires considerations of such factors as cost, difficulty, and impact on operations. See 42 U.S.C. § 111(10); 29 C.F.R. § 1630.2(p).

6 44 F.3d 538 (7th Cir. 1995).

7 Id. at 545.

8 See, e.g., Heaser v. Toro Co., 247 F.3d 826, 831 (8th Cir. 2001) (assuming, without deciding, that "working from home may, in certain circumstances, be a reasonable accommodation"); Humphrey v. Memorial Hosps. Ass'n, 239 F.3d 1128, 1136-37 & n.15 (9th Cir. 2001) (rejecting Vande Zande and agreeing with the EEOC that "[w]orking from home is a reasonable accommodation when the essential functions of the position can be performed at home and a work-at-home arrangement would not cause undue hardship for the employer"), petition for cert filed, 69 U.S.L.W. 3792 (U.S. June 13, 2001) (No. 00-1860); McKechnie v. St. Paul Fire & Marine Ins. Co., No. 98 C 8351, 2001 WL 1143172, *12 (N.D. Ill. Sept. 26, 2001) (finding a question of fact on whether the defendant employer failed to accommodate the plaintiff employee by requiring the employee to be at work from 8-to-5); see also EEOC Enforcement Guidance, 8 FEP Manual (BNA) 405:7626 (no. 33); EEOC Informal Letter Ruling, Sept. 27, 2001 (stating that, if working from home is feasible and does not cause undue hardship, then it is a violation of the ADA to require a disabled employee to take a leave of absence and backfill the employee's position rather than permit the employee to work at home).

9 See, e.g., Moore v. Walker, No. 01-1073, 2001 WL 15654035, *4 (10th Cir. Dec. 10, 2001) (unpublished opinion) (holding that allowing an employee to work at home without supervision four days a week was not a reasonable accommodation where the employee's position required him to interview people, attend team meetings, and collaborate with co-workers); Kvorjak v. Maine, 259 F.3d 48, 54-58 (1st Cir. 2001) (considering the employee's position, the employer's operations, and confidentiality concerns, and concluding that the telecommuting request was unreasonable, despite the fact that other employees had been allowed to work at home); Heaser, 247 F.3d at 831-32 (analyzing the employee's job duties and the employer's computer systems and concluding that working from home was not feasible); Gits v. Minnesota Mining & Mfg. Co., No. 99-1925, 2001 WL 1409961, *9 (D. Minn. June 15, 2001) (holding an employee's request to work at home unreasonable because his position involved team work under supervision); Davis v. Lockheed Martin Opers. Support, Inc., 84 F. Supp.2d 707, 713 n.2 (D. Md. 2000) ("Certainly, as employers increase their reliance on telecommuting, working at home will often be a reasonable accommodation for employees with disabilities.")

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