“Workplace” Definition May be Changing

What is your definition of a “workplace”?  Workplace is defined in the Merriam-Webster dictionary as “a place (as a shop or factory) where work is done”.  So, in your business, is it defined as the brick-and-mortar building where your employees come to work every single day?  That definition may be changing.   In April, the Sixth Circuit court ruled in EEOC v. Ford Motor Co., that the “workplace” includes more than an employer’s brick-and-mortar location; that technology has expanded the “workplace” to the point where on-site attendance may not be an essential job function or, in the alternative, that telecommuting may be a reasonable accommodation.

An employer discriminates under the ADA if it does not make “reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability, who is an applicant or employee, unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of the business.”    An “otherwise qualified individual” is one who can perform the essential functions of the job with or without a reasonable accommodation.

Courts have long held that “regular and predictable attendance in the workplace” is an essential job function.  For many jobs, attendance at the brick-and-mortar job site is essential.  For others, with the advance of technology, the definition of workplace can be expanded.  The Plaintiff in this case requested that she be permitted to telecommute on an as-needed basis as a permanent accommodation for her disability after receiving the accommodation on a temporary basis. The Court noted that the “workplace” is anywhere that an employee can perform her job duties.  Accordingly, the question is no longer whether attendance is an essential function of the job, but rather whether physical presence at the employer’s facility is an essential function of the job.

In finding telecommuting to be a reasonable accommodation, the Sixth Circuit was careful to distinguish telecommuting from flex-time arrangements.  Allowing an employee to work from home on a flex schedule that the employee decides upon, which may include working outside of normal business hours, may not be a reasonable accommodation.  Working from home during normal scheduled hours and where the employer can rely on the employee to be working during said hours, would be considered a reasonable accommodation.

Employers must evaluate requests for telecommuting accommodations on a case-by-case basis, looking at the employee’s specific job duties and requirements, the availability of telecommuting technology, how often the employee currently uses telecommuting technology, such as conference calls, emails, and video-chatting devices, whether other employees are permitted to telecommute, whether telecommuting would affect the employee’s job performance, and whether other employees would be burdened if the employee were allowed to work remotely.  In borderline cases, it may be preferable to try a telecommuting arrangement, rather than rejecting it outright, as the answers to some of the above questions may be speculative in an untested situation.  Employers must remember their obligation and duty to engage in the interactive process with an employee requesting accommodation for a disability.   Although honoring an employee’s request to telecommute five days per week may not be reasonable, two or three days may be.  Where an employer objects to an employee’s initial request for accommodation, it is the employer’s duty to engage in the interactive process to explore reasonable alternatives.

Because Pennsylvania is governed by the Third Circuit, the decision in the Ford case is not technically binding on courts in Pennsylvania.  However, it is anticipated that it will be used by the EEOC field offices in Pennsylvania to rely on its reasoning to determine ADA failure to accommodate cases.  As such, you should reassess your company’s policies and practices regarding telecommuting.

Tonya Nevling
Managing Director
Power Kunkle HR Solutions
610-790-2469

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