As technology advances, telecommuting becomes more and more feasible. For instance, employees can work on their employer’s computer network from home thanks to remote applications and they can even participate in important meetings and presentations thanks to video conferencing. However, does this increased feasibility now mean that telecommuting should be considered a required reasonable accommodation, under the Americans with Disabilities Act of 1990 (the “ADA”), on the part of employers? Americans with Disabilities Act of 1990, Pub. L. No. 101-336, 104 Stat. 327 (1990) (codified as amended at 42 U.S.C. §§ 12101-12117(2000)).
Under the ADA, employers are required to actively alter their workplaces in order to accommodate individuals with disabilities. Specifically, covered entities, including private employers, are required “to provide ‘reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship.’” Toyota Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 193, 122 S.Ct. 681, 689 (2002) (citing 42 U.S.C. §12112(b)(5)(A) (1994 ed.)). The ADA defines a “qualified individual with a disability” as an “individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” Id. (citing §12111(8)). Generally “substantial weight” is given to an employer’s position as to what constitutes an essential function. 42 U.S.C. §12111(8). Courts have devoted extensive time to determining just what constitutes a reasonable accommodation in a myriad of situations. But what about telecommuting – could working from home be a mandated reasonable accommodation under the ADA?
Many recent cases and law reviews have addressed this topic and even the Equal Employment Opportunity Commission (the “EEOC”) has offered insight:
- “Generally, an employer is not required to offer a work-at-home accommodation … ‘an employer is not required to allow disabled workers to work at home, where their productivity inevitably would be greatly reduced … 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.’” Wojciechowski v. Emergency Technical Servs. Corp., 1997 U.S. Dist. LEXIS 3740, 6 Am. Disabilities Cas. (BNA) 1290 (N.D.Ill. 1997) (citing Van Zande v. Wisconsin Dep’t of Admin., 44 F.3d 538, 545 (7th Cir. 1995)).
- “An employee who is ‘unable to come to work on a regular basis … [is] unable to satisfy any of the functions of the job in question, much less the essential ones.’ Halperin v. Abacus Tech. Corp., 128 F.3d 191, 198 (4th Cir. 1997). See also Hypes v. First Commerce Corp., 134 F.3d 721, 726 (5th Cir. 1998); Rogers v. Int’l Marine Terminals, Inc., 87 F.3d 755, 759 (5th Cir. 1996) (noting that plaintiff who could not attend work was not a ‘qualified individual with a disability’); Nesser v. Trans World Airlines, Inc., 160 F.3d 442, 445 (8th Cir. 1998) (finding attendance a necessary job function) … Neither the fact that some of [the employee’s] duties required her to be off site, nor that her superior permitted her to telecommute on occasion means that attendance was not an essential function ….” Dudley v. California Dep’t. of Trans., 2000 U.S. App. LEXIS 5249 (9th Cir. 2000).
- “Generally, therefore, an employer is not required to accommodate a disability by allowing the disabled worker to work, by himself, without supervision at home. This is the majority view illustrated by Tyndall v. Nat’l Educ. Centers, Inc., 31 F.3d 209, 213-14 (4th Cir. 1994), and Law v. United States Postal Serv., 852 F.2d 1278 (Fed.Cir. 1988) (per curiam).” Van Zande v. Wisconsin Dep’t of Admin., 44 F.3d 538, 544-45 (7th Cir. 1995).
- “The ADA does not require an employer to offer a telework program. However, if an employer does offer telework, it must allow employees with disabilities an equal opportunity to participate in such program.” EEOC, Telework Fact Sheet, issued February 3, 2003, at www.eeoc.gov/facts/telework.html (last visited October 31, 2005).
While it should be noted that courts have differed regarding whether telecommuting can be a reasonable accommodation, the above cited case law clearly demonstrates the majority view that telecommuting is not a required and automatic reasonable accommodation under the ADA. Yet, in light of the ever increasing ability to work effectively from home, courts likely have not yet heard the last of this issue. Stay tuned to see if we are indeed homeward bound!
