Telecommuting again raised as a reasonable accommodation

Questions related to reasonable accommodations for employees with disabilities are some of the most difficult situations for employers to resolve. The Americans with Disabilities Act requires employers to grant an employee a reasonable accommodation in the workplace for his or her disability. Such an accommodation is not required if it would cause an employer an undue hardship. Determining an employer’s obligations can be tricky when there is not a black-and-white test that tells an employer whether an accommodation is reasonable or imposes an undue hardship.

Special note to Wisconsin employers – this analysis can be even more difficult in our great state where you may be required to change some of the employee’s job duties to meet the requirements of the Wisconsin Fair Employment Act. Ironically, this unique Wisconsin consideration is associated with a cheese factory. But I digress. . .

In the latter half of 2012, federal courts in Ohio and Michigan made waves by suggesting that telecommuting might be a reasonable accommodation an employer has to provide in response to an employee’s notice of disability. This month, a federal court in Texas joined the telecommuting-as-a-reasonable-accommodation club. In Edwards v. Chevron U.S.A., Inc., the court addressed a couple of issues on the employer’s motion for summary judgment. Important for this discussion is the second issue, whether the employer violated the ADA when it denied the employee’s request for a reasonable accommodation. Here, the employee claimed that she made a request to telecommute as a reasonable accommodation. On this issue, the court denied the employer’s motion and found in favor of the employee. Although the court’s expressed concern was whether the employee actually made the request, it seems to have accepted that telecommuting could be a reasonable accommodation.

Determining what is a reasonable accommodation is a complicated task that must be determined on a case-by-case basis. Several factors will guide whether an accommodation is a reasonable one for an employee or whether it imposes an undue hardship on the employer. Employers confronted with difficult situations should consult counsel well-versed in the ADA to confirm their obligations under the law. As workplaces become more and more mobile, employers also need to consider telecommuting as a reasonable accommodation. Though no court has taken a firm stance to support it, a trend is developing with courts willing to accept telecommuting as a reasonable accommodation. To be clear, not every job or position is appropriate to consider a telecommuting alternative. Many just require an employee’s presence at the workplace. However, employers should be especially cautious denying a telecommuting request when an employee has a disability and another similarly situated employee is allowed to telecommute.

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