Telecommuting becomes a more reasonable ADA accommodation every year
HR Dive's senior editor, Kate Tornone, discusses the shifting relationship between remote work and the ADA in this installment of "Other Duties as Assigned."
In "Other Duties as Assigned," HR Dive's senior editor, Kate Tornone, weighs in on employment trends, compliance best practices and, of course, the situations that require you to go above and beyond your normal duties. Today: the shifting relationship between remote work and the ADA.
The Americans with Disabilities Act's (ADA) broad language leaves plenty of room for advancements in technology; offering a nonexhaustive list of potential accommodations, its drafters likely were aware that they could not predict the accommodations that would be possible in the future.
Instead, the task of determining whether a specific accommodation is "reasonable" often falls to the courts, which must look at the specific facts of each situation. So it's no surprise that we’re seeing — and, presumably, will increasingly see — courts hold that telecommuting can be a reasonable accommodation.
A few years ago, the 6th U.S. Circuit Court of Appeals held in EEOC v. Ford Motor Company, 782 F.3d 753 (6th Cir. 2015) (en banc), that telecommuting wasn’t a reasonable accommodation for an employee because the employer showed that regular and predictable on-site attendance was an essential function of her job.
And for many jobs, it remains vital to have employees on site. But companies are increasingly allowing remote work when they can, to both find the right talent in this tight labor market, and to improve engagement and retention. Its use has exploded in recent years, but it's often adopted informally, and many employers lack telework policies.
That brings us back to the 6th Circuit. A few days ago, it held in Mosby-Meachem v. Memphis Light, Gas & Water Division, No. 17-5483, that 10 weeks’ remote work was a reasonable accommodation for an employer’s in-house attorney.
The employer didn’t allow employees to work from home, but they frequently did so, according to court documents. Following a surgery, the employee was permitted to work from home for two weeks. Following another surgery a year later, her doctor placed her on “modified bed rest” for 10 weeks and she requested the same accommodation.
This time, the employer declined her request, stating that physical presence was an essential function of her job. She sued and won, and the employer appealed. On appeal, the 6th Circuit upheld the lower court’s findings. The court acknowledged that the plaintiff’s job description included requirements that she be able to take depositions and represent the employer in court, but in her eight years there, she had never done either of those tasks. That, combined with the fact that she and others had successfully done their work remotely before, meant that 10 weeks’ remote work was likely reasonable, the court said.
There are a few important things to take away from this case.
First, employers generally remain free to refuse to allow employees to telecommute (if that’s your thing), but the ADA requires accommodations for workers with disabilities, and exceptions to policies are often a necessary accommodation. Black-and-white rules will get you every time (like those no-fault attendance policies). Instead, the ADA favors an "interactive process" for deciding on an accommodation — something the decisionmakers in Mosby-Meachem missed, according to the appeals court.
Second, it's so important to enforce your policies and to do so consistently (until, of course, it's time to grant an exception as an accommodation). If you turn a blind eye when some employees telecommute but refuse to allow a worker with a disability to do so as an accommodation, it's easy to see how a jury might view that as discrimination. It's the same as suddenly enforcing a call-out policy for an employee on medical leave.
Finally, while Ford and Mosby-Meachem can co-exist (the facts were quite different, after all, and some jobs just aren't suitable for remote work today), I have to imagine we'll be seeing more and more rulings favoring telecommuting as an accommodation. As more work can be done from anywhere, the more it is done from anywhere. And when remote work is already part of your offerings or culture, the more “reasonable” an accommodation it becomes under the ADA.
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