Tuesday, April 22, 2014

Employer Alert: Telecommuting Gaining Steam as a Reasonable Accommodation Under the ADA

  • This case reinforces the point that courts are more and more willing to permit employees to work from home.  
  • Employers wishing to mandate employees be on site, should have an airtight case for that requirement when dealing with the Americans with Disabilities Act (ADA).   
In a recent federal appellate case from Michigan, the court found that a telecommuting arrangement allowing an employee to telecommute four out of five days of the workweek on a spur-of-the-moment, unpredictable, basis could be a reasonable accommodation under the ADA - even for a position that involves routine face-to-face interactions.

This particular employee could be a qualified individual based on two theories: either by eliminating the requirement of regular, predictable job attendance, or by permitting an unpredictable telecommuting arrangement that served as a work-around to regular job attendance.

In past decisions the same court ruled that:
“excessive absenteeism” renders an individual unqualified under the ADA as a matter of law, Brenneman v. MedCentral Health Sys., 366 F.3d 412, 419 (6th Cir. 2004), except in the “unusual case where an employee can effectively perform all work-related duties at home” without a substantial reduction in the quality of performance, Smith v. Ameritech, 129 F.3d 857, 867 (6th Cir. 1997) (emphasis added).
Nevertheless, this court went on to state that, "the class of cases in which an employee can fulfill all requirements of the job while working remotely has greatly expanded." (Page 13.)  And that they were "merely recognizing that, given the state of modern technology, it is no longer the case that jobs suitable for telecommuting are 'extraordinary' or 'unusual.'" (Page 18.)