Time & Attendance
By R. Oswald
Nov. 19, 2014
Under the Americans with Disabilities Act, an employee must be qualified to perform the essential functions or duties of a job, with or without reasonable accommodation, in order to be protected from discrimination.
Courts have historically considered presence at work an essential job function. This perspective explains why courts during much of the 1990s consistently ruled against telework as a reasonable accommodation.
In 1991, the Eastern District of Virginia held that reasonably regular and predictable attendance is necessary for most jobs in Walders v. Garrett. Three years later, the Court of Appeals for the District of Columbia held that an essential function of any government job is an ability to appear for work in Carr v. Reno. Also in 1994, the Court of Appeals for the Federal Circuit held that an employee who cannot meet a job’s attendance requirements cannot be considered a “qualified” individual protected by the ADA in Carr v. Reno. That same year, the Central District of California held that a disabled employee cannot establish that she can perform essential functions of job without proving predictable and reliable level of attendance in Kennedy v. Applause, Inc. In these decisions and others, the courts clearly disfavored teleworking as a reasonable accommodation.
By the late-1990s, however, changes to policies and new laws indicated that teleworking was more accepted and even a beneficial addition to the workplace. This change helped promote teleworking as a reasonable accommodation. The U.S. Equal Employment Opportunity Commission issued Enforcement Guidance on Reasonable Accommodations and Undue Hardship under the ADA in 1999. The Enforcement Guidance, which was revised in 2002, stated that allowing an individual with a disability to work at home may be a reasonable accommodation.
In February 2003, the EEOC issued a Telework Fact Sheet, which states that telework may be a valuable tool for employers to boost morale and productivity. It also reemphasized the agency’s stance that working remotely may be a reasonable accommodation. The fact sheet also says that although the ADA does not require an employer to offer a telework program, the employer must allow employees with disabilities the opportunity to participate in a telework program if one is offered to other employees.
The federal government further legitimized telework’s role in the workplace with the Telework Enhancement Act of 2010. The act requires the head of every executive agency to establish a teleworking policy, determine the eligibility of all employees to participate in telework, and notify employees of their eligibility to telework.
Earlier this year, the 6th U.S. Circuit Court of Appeals stated that attendance is no longer synonymous with physical presence in the workplace in EEOC v. Ford Motor Co. The court’s decision went so far as to suggest that under the ADA, an employer may be required to permit telecommuting as a “reasonable accommodation” even if attendance is an essential job function. Importantly, the court did not follow its own 1997 decision which held that telecommuting would only be reasonable in an unusual case. The court reasoned that the class of cases in which an employee can fulfill all requirements of the job while working remotely has greatly expanded.
EEOC guidelines, the Telework Enhancement Act, and the Ford Motor decision have laid the foundation for teleworking as a viable accommodation option, and it is likely other courts will agree that teleworking may be a suitable reasonable accommodation. Furthermore, several recent cases that analyzed the ADA’s “undue hardship” standard will likely support future arguments that teleworking is not an undue hardship.
For example, a recent 4th U.S. Circuit Court of Appeals case involving a failure-to-accommodate claim discussed a district court’s decision that an employee’s request to work remotely temporarily was unreasonable. The plaintiff did not challenge the district court’s decision, but the 4th Circuit nonetheless reminded employers that “an employee’s accommodation request, even an unreasonable one, typically triggers an employer’s duty to engage in an ‘interactive process’ to arrive at a suitable accommodation collaboratively with the employee” in Summers v. Altarum Inst. Corp.
The 4th Circuit’s reminder highlights an employer’s duty to engage in the interactive process with an employee even if the employer believes that an accommodation, such as teleworking, is unreasonable. The 4th Circuit’s decision differs from earlier decisions because it did not simply find that a telework accommodation was unreasonable.
In an August 2014 decision from the U.S. Court of Appeals for the District of Columbia, the court held that a work arrangement in which an employee sought flexibility in her working hours may be a reasonable accommodation. Citing the Ford Motor decision, the court stated that technological advances and the evolving nature of the workplace, have contributed to facilitate more reasonable accommodation options available to employers.
Importantly, that decision disagreed with the defendants and the lower court, which held that the ability to work a regular and predictable schedule is an essential element of any job. The court also disagreed with a previous decision which held that “[p]hysical presence at or by a specific time is not, as a matter of law, an essential function of all employment.” Instead, the court held that the proper analysis is a “penetrating factual analysis” to determine whether a “rigid on-site schedule is an essential function of the job in question.”
It is important for employers and employees to understand that courts are being more flexible in determining what constitutes a reasonable accommodation. It is likely that other courts will adopt similar, more flexible views on reasonable accommodations and even hold that teleworking is a viable reasonable accommodation.
R. Scott Oswald is managing principal and David L. Scher is principal of the Employment Law Group PC. To comment, email email@example.com.
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