Update on Employee Telecommuting
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.
For more information, contact Bill Barath
or any member of Ice Miller’s Labor, Employment and Immigration
This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.