Employers Should Consider Telework as a Reasonable Accommodation
Telework is among the array of possible reasonable accommodations under the Americans with Disabilities Act that may enable an employee with a disability to perform the essential functions of the job.
As federal appellate courts have confirmed, there are situation where telework is not a reasonable accommodation, namely where attendance and face time are essential functions of the job. But, other times, telecommuting may be just what the doctor ordered.
When employers try to play the role of doctor, well, that’s when problems ensue.
For example, late last week, the U.S. Equal Employment Opportunity Commission (EEOC) announced (here) that a Texas construction company will “pay $58,000 and provide substantial injunctive relief” to settle a failure to accommodate claim under the ADA due to the employer’s failure to permit telework for an employee.
Here’s more from the EEOC’s press release:
In its lawsuit, the EEOC alleged that Baker Concrete terminated payroll manager Maria Castillo in 2013 because of her disability, asthma, when the company refused to provide her with a reasonable accommodation of working at home for a period after she had a bad reaction to chemical dust in the workplace. After Castillo, a nine-year employee of the company, was denied a reasonable accommodation, she was fired by two human resource officials, who told her that she was disabled, could no longer perform her job, and would just become ill again if they gave her permission to work at home for a period because the building was old and she would continue to have breathing problems upon her return.
It seems as though the company (allegedly) reached a snap judgment that an employee with asthma would never be able to function effectively at work. This is not the approach contemplated by the ADA.
Ask the employee for a medical certification from his or her doctor. If the certification supports that the employee has a disability, cannot perform her job at the office, and the only possible accommodation is telework, then assess whether working remotely comports with the essential functions of the job.
Hopefully you have an accurate written job description that reflects the duties and responsibilities of the position. And then apply it to this situation. This exercise should help you decide if working remotely is feasible.
But, even if you don’t have the job description, a court should not second-guess a well-reasoned, evenly-applied business assessment that telecommuting will not allow the employee to perform the essential functions of the job. However, you will need a well-defined reason why it is not a reasonable accommodation with the facts you have.
Regardless of the decision you make, communicate with the employee and address the reasonable accommodation request in good faith. After that, record your decision either in the employee’s personnel file or on a confidential ADA accommodation log.