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.
In the 4th U.S. Circuit Court of Appeals, courts have historically considered presence at work an essential job function. This perspective made it unlikely that trial courts in Virginia and other 4th Circuit states would deem teleworking a potential reasonable accommodation.
In 1991, the Eastern District of Virginia held in Walders v. Garrett, 765 F.Supp. 303 (E.D.Va.1991), that reasonably regular and predictable attendance is necessary for most jobs. In 1994, the 4th Circuit said in Tyndall v. Nat’l Educ. Ctrs., 31 F.3d 209 (4th Cir. 1994), that regular and predictable attendance is a necessary element of most jobs. Also in 1994, the nearby Court of Appeals for the Federal Circuit similarly held that an employee who cannot meet a job’s attendance requirements cannot be considered a “qualified” individual protected by the ADA.
But changes in federal guidelines set the stage for viewing teleworking as a reasonable accommodation under the ADA.
In the late 1990’s and early 21st century, changes to policies and new laws indicated that teleworking began to be more acceptable, or even a beneficial addition, to the workplace. This change helped promote teleworking as a reasonable accommodation. In 1999, the Equal Employment Opportunity Commission issued Enforcement Guidance on Reasonable Accommodations and Undue Hardship under the ADA. 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. The Fact Sheet states that telework may be a valuable tool for employers to boost morale and productivity. It also reemphasized 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 an equal opportunity to participate in a telework program if the employer offers telework to any of its employees.
On Dec. 9, 2010, President Obama signed into law H.R. 1722, the Telework Enhancement Act of 2010, which became Public Law 111-292. This law 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.
Courts too, have begun to reject the notion that a physical presence at the workplace is always necessary.
Fast forward to April 2014, and the 6th Circuit’s decision in EEOC v. Ford Motor Co., 752 F.3d 634 (6th Cir. 2014). The Cincinnati-based federal appeals court said attendance is no longer synonymous with physical presence in the workplace. The Ford Motor 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 declined to follow its own 1997 decision which held that telecommuting would only be reasonable in an unusual case, reasoning that the class of cases in which an employee can fulfill all requirements of the job while working remotely has greatly expanded.
Given the shift toward increased acceptance of teleworking in the general labor force, and existing precedent, it’s possible to predict that the 4th Circuit is likely to endorse telework as a reasonable accommodation.
EEOC guidelines, the Telework Enhancement Act, and the Ford Motor decision have laid the foundation for teleworking as a viable accommodation option. Several recent 4th Circuit cases that analyzed the ADA’s “undue hardship” standard will likely support future arguments that teleworking is not an undue hardship.
In a recent decision involving a failure-to-accommodate claim, Summers v. Altarum Inst. Corp., 740 F.3d 325 (4th Cir. 2014), the 4th Circuit discussed the district court’s holding that an employee’s request to work remotely temporarily was unreasonable. The plaintiff did not challenge the district court’s decision, but the appellate court 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.”
The Summers reminder highlights an employer’s duty faithfully to engage in the interactive process even if it the employer believes that an accommodation, such as teleworking, is unreasonable. Importantly, Summers differs from earlier decisions because it did not simply find that a telework accommodation was unreasonable.
Another decision from North Carolina’s middle district, Hughes v. B/E Aerospace Inc., 2014 WL 906220 (M.D.N.C. Mar. 7, 2014), stresses the factors to consider when determining whether an accommodation is reasonable. The case was not about teleworking, but the court’s reasoning should support future plaintiffs who argue that teleworking is a reasonable accommodation. The district court said one factor to consider in determining whether an accommodation creates undue hardship on the employer is its impact on the ability of other employees to perform their duties and its impact on the facility’s ability to conduct business.
Future plaintiffs seeking a teleworking reasonable accommodation can argue – and in many cases, demonstrate – that such an accommodation does not impact the ability of other employees to perform their duties or impact the facility’s ability to conduct business.
Although the 4th Circuit has not yet embraced the Ford Motor decision, it is likely it will eventually adopt a similar position and hold that teleworking is a viable reasonable accommodation. In the meantime, analyses from recent cases, even if they do not specifically address teleworking, can help proponents of a telework accommodation.
– By R. Scott Oswald and Tom Harrington