LexisNexis® CLE On-Demand features premium content from partners like American Law Institute Continuing Legal Education and Pozner & Dodd. Choose from a broad listing of topics suited for law firms, corporate legal departments, and government entities. Individual courses and subscriptions available.
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.
Now, as a federal appellate court confirmed last month, there are situations in which telework is not a reasonable accommodation; namely, where attendance and face time are essential functions of the job [EEOC v. Ford Motor Co., 782 F.3d 753; an enhanced version of this opinion is available to lexis.com subscribers]. 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. Here’s more from the 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.
So, if I’m reading accurately between the lines, the company (allegedly) reached a snap judgment that an employee with asthma would never be able to function effectively at work.
Ask the employee for a medical certification from 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, this isn’t something you’re deciding for the first time on the spot. Rather, you have a written job description that accurately reflects the duties and responsibilities of the position. And then apply it to this situation.
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.
Either way, whatever you do, communicate with the employee and address the reasonable accommodation request in good faith.
This article was originally published on Eric B. Meyer's blog, The Employer Handbook.
For more information about LexisNexis products and solutions, please connect with us through our corporate site.