ADA Reasonable Accommodations: New Verdict Says You Could Be Required To Allow Telecommuting

An employee is physically un-comfortable working at your office because of a disability. He asks to be allowed to telecommute at least one day a week. Do you have to agree to this arrangement? A recent court ruling says the answer may be yes. In what could be the first case in which a worker won the right to work from home, a jury ordered an employer to pay $90,000 for failing to permit telecommuting as a disabled worker’s “reasonable accommodation.”

Employee Wanted Freedom To Lie Down

Michael Faircloth, a labor relations representative for the Bay Area Rapid Transit District (BART) in Oakland, suffered from chronic back and neck pain. His attorney told CEA that sitting for long periods both at work and during his one-hour commute to and from the office aggravated the pain. So he asked BART if he could work from home one day a week to reduce his commute time and allow him to stretch out as needed. BART refused.

Jury Says Telecommuting Is Reasonable Accommodation

Faircloth sued, charging that BART violated the Americans with Disabilities Act (ADA) by failing to reasonably accommodate his disability. He pointed out that his job involved telephone and computer tasks requiring no face-to-face contact with others. According to BART’s attorneys, the transit district contended that Faircloth needed to be present in the office for impromptu meetings and unscheduled site visits. It also argued that Faircloth could have alleviated some of his problems by moving closer to work.

The jury, however, sided with Faircloth. It ordered BART to allow him to work from home one day a week and to pay him $90,000 in damages. Faircloth is also planning to ask for $100,000 in attorneys’ fees. BART is appealing the verdict.

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What This Case Means To You

There are a number of reasons why many employers are reluctant to allow workers to telecommute. But this case signals that a request to permit an employee to work at home should be seriously considered as an ADA accommodation option. And, as telecommuting becomes increasingly common, you’re likely to see more of these requests. Therefore, it’s important to be prepared to handle them properly. Here are some suggestions:

1. Assess the job requirements. Whether telecommuting is a reasonable accommodation will depend on the position. Certain jobs by their very nature cannot be performed away from the workplace. And some courts have suggested the telecommuting option probably isn’t required if the job involves a lot of teamwork under supervision rather than solitary, unsupervised work, or if it will be difficult for the employee to receive training or meet frequent deadlines from home. But in the BART case, the jury was apparently convinced that telecommuting was a reasonable option because Faircloth’s job could be done as easily from home as at the office.
2. Update job descriptions. If you never intended a job to be performed away from the office, you may want to revise the job description. Otherwise, it could be used against you as evidence that telecommuting is a viable option. When updating job descriptions, consider spelling out the teamwork, interaction with co-workers, and on-site supervision and training that are necessary to perform the job properly.
3. Look at other accommodation possibilities. Mary Maloney Roberts, a partner in the Emeryville law firm of Corbett & Kane, points out that an employee does not have the right to the accommodation of their choice. So if a disabled employee wants to telecommute and you have legitimate business reasons for refusing, you can still meet your ADA obligations by offering an alternative accommodation that meets the individual’s needs.
4. Periodically reevaluate tele-commuting arrangements. If you are allowing a disabled employee to telecommute and it isn’t working out-for example, because the worker’s productivity is declining-you should counsel the person about the problem. If the employee fails to improve, you can require them to work at the office. But you should still try to explore alternative accommodations that would enable the person to perform the essential functions of the job while on-site.
5. Stick to your policies. If you have a policy allowing employees to work out of the house under certain circumstances, it’s important to follow it to the letter for all employees who qualify. Otherwise, you could find yourself embroiled in a disability discrimination lawsuit if you permit some people who are not disabled to work from home, but fail to consider whether disabled employees are eligible to do the same as a reasonable accommodation.