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Question: A client has asked for an interpretation of the Americans with Disabilities Act (ADA) as it applies to telecommuting. Can the employer require telecommuting for an employee as a reasonable accommodation for a disability that otherwise would be an unreasonable burden in the workplace? The question applies to physical disabilities, but the employer also wonders whether telecommuting could be required of an employee with an ADA-covered mental impairment.
Answer: As with most ADA dilemmas, there is no easy answer that applies in all situations. The ADA does allow telecommuting as a reasonable accommodation, even if the employee would prefer not to work at home, but the employer must be careful in using this option.
In many situations, the answer depends on the employer’s motivation for requiring the telecommuting. If the employer has good intentions, the arrangement may be fine.
It is common for employers to offer telecommuting, in which the employee works at home via computer and telephone, as a reasonable accommodation under the ADA, explains Chris Kuczynksi, JD, assistant legal counsel and director of the ADA Policy Division of the Equal Employment Opportunity Commission in Washington, DC. The EEOC oversees interpretations of the ADA. Kuczynksi tells OHM that in most cases, telecommuting is offered because the job applicant’s disability makes it difficult or impossible to get to the workplace five days a week. To make it easier on the worker, the employer allows the disabled worker to work at home, often for two or three days a week.
That arrangement is completely in compliance with the ADA, Kuczynski says. But what if the applicant wants to work at the employer’s job site and the employer insists he or she work from home? Then the issue becomes much more murky, and the EEOC would take a close look at the intentions of the employer.
It is conceivable that the employer would find all possible modifications of the workplace to be an "undue hardship," as defined by the ADA, yet be willing to have the employee work at home, Kuczynski says. If so, it is OK for the employer to say telecommuting is the only reasonable accommodation that can be made for the disabled worker. In that scenario, and if that is an accurate assessment, it would be acceptable to require telecommuting even if the worker did not want to work at home.
"That’s fine because it’s the difference between the worker getting the job on those terms and not getting the job at all," he explains. "Without the telecommuting option, the employer could just say there are no reasonable accommodations."
The tricky part is figuring out if that is the real motivation. Investigators from the EEOC and the U.S. Justice Department would want to know if the employer was only seeking to find a reasonable accommodation or if the employer was trying to bar the disabled worker from the workplace.
"We would be very concerned if telecommuting were used as a means of segregating the person from the workplace," he says. "If the employer is saying he just doesn’t want to make any other modifications, or if he’s saying, I don’t want people in the public to see this person with a disability, so I’ll give him a job as long as he’s at home and away from public contact,’ then I think we’d have a real problem."
Determining the employer’s motivation in such circumstances could be difficult, but the federal investigators would look at other accommodations that could be made. If the employer could modify the workplace to accommodate the applicant without it being an undue hardship, it will be more difficult to require telecommuting. The employer might argue that it is equally expensive and difficult to modify the workplace or allow telecommuting, and then choose telecommuting for some reason. So far, that’s legal. The ADA does allow employers to choose from whatever accommodations are reasonable.
But if telecommuting offers no apparent cost savings or other benefits when compared with other possible accommodations, the investigators will consider whether the employer was just trying to hide the disabled worker. If there is any indication of that, the employer could be guilty of violating the ADA and face major penalties.
"One purpose of the ADA is to ensure that people with disabilities are integrated into the workplace," Kuczynski explains. "An accommodation that purposefully tries to put people at home and keep them away from co-workers and the public would fly in the face of the ADA."
Investigators would look at whether other employees in the company telecommute. The more common it is to have employees telecommute, the easier it will be to show the disabled worker is not being segregated from the workplace intentionally. And the nature of the work also will be important. If the work involves sitting in a cubicle and making telemarketing calls all day with very little coworker contact, the employer can argue that the worker is not really deprived of any interaction by telecommuting.
In particular, Kuczynski cautions that employers must not try to use telecommuting as a way of segregating workers with mental impairments. The EEOC recently confirmed that mental disabilities are included under the ADA, a point that was long suspected but not clarified by the EEOC. The EEOC defines a mental impairment as "any mental or psychological disorder, such as . . . emotional or mental illness." Examples include major depression, bipolar disorder, anxiety disorders, schizophrenia, and personality disorders. As with physical disabilities, the mental impairment must "substantially limit" one or more major life activities.
Employers and occupational health providers have expressed concern that the mental impairment provision of the ADA could force the hiring of workers who otherwise would be seen as too disruptive or dangerous for the workplace. That remains a difficult issue, but Kuczynski warns telecommuting is not an option for dealing with those fears.
"If you’re asking him or her to telecommute because you fear how the mental impairment will materialize in the workplace, that suggests the employer has chosen this particular form of accommodation to discriminate based on fears and stereotypes about the worker’s mental disability," he says. "The disability may, in fact, have no effect on the person’s ability to do the job and interact with the public. Telecommuting as a way to segregate the person from others in the office and the public is not acceptable."