One hot area of employment disability law is the way in which telecommuting can be used by an employee. Many employees enjoy the benefits of telecommuting, as it saves on travel time and expenses, minimizes workplace disputes, and increases productivity. In many cases, telecommuting can accommodate individuals with disabling conditions to continue working.
There has been, and will continue to be, much litigation in this area of the law. Here are some basics to determine whether you may have the right to telecommute to your place of employment:
1. Are you Disabled?
The Americans with Disabilities Act (“ADA”) defines an individual with a disability as either: (A) a physical or mental impairment that substantially limits one or more major life activities of an individual; (B) a record of such impairment; or (C) an employee who can demonstrate that his employer regarded him or her as having such impairment.
This impairment must either substantially limit one or more of a person’s major life activities or bodily functions. Major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working. Major bodily functions include the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. This includes persons with cancer or diabetes.
2. Can you Perform the Job With or Without Accommodation?
To be otherwise qualified, an employee must be able to perform the essential functions of her position, with or without accommodation. An “essential” function is a primary, not a marginal one. It is in essence, the reason the position exists is to perform that function. An essential function can also be essential because of the limited number of employees available among whom the performance of that job function can be distributed; and/or the function may be highly specialized so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function.
3. Did You Request Accommodation? If Not, Why Not?
The ADA makes it unlawful to fail to 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 such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity;
Moreover, the ADA requires an employer to be willing to consider making changes in its ordinary work rules in order to enable a disabled individual to work. The accommodation provisions of the ADA may sometimes allow a worker with a disability to violate a rule that others must obey. The essence of the concept of reasonable accommodation is that, in certain instances, employers must make special adjustments to their policies for individuals with disabilities.
Once an employer is put on notice of the need for an accommodation, that employer has a mandatory obligation under the ADA to engage in an interactive process with the employee to identify and implement appropriate reasonable accommodations.
4. The Cup of Coffee Defense
Recently, my firm handled a disability claim in which a federal employee, a management program analyst, was afforded a reasonable accommodation, a telecommuting schedule, under the ADA for several years. Our client suffered from a severe back injury caused by a motor vehicle accident. A new supervisor was appointed over her who was either not trained properly on reasonable accommodations for the disabled or purposely ignored such training. The new supervisor had a rule that she insisted upon; namely, that every employee, no matter what the circumstance, must call in to the office to inform her that said employee would miss work. This was a classic case of a supervisor ignoring the pain and suffering of a disabled person in order to build conformity to rules that obviously adversely impact persons with disabilities.
The employee informed the new supervisor of an impending back surgery and was granted that day off. However, when the employee asked for additional time off the following week for recovery time, the new supervisor refused to grant it, and then insisted that the employee come to the office for a meeting, despite her great pain. At the meeting, the supervisor revoked our client’s telecommuting schedule and censured her for emailing her request early in the morning on the day she wanted off, rather than calling the supervisor later in the day.
Our client’s restrictions included lifting greater than 15 pounds, sudden bending or twisting, and a 50% reduction in her lower left extremity. She couldn’t drive to her place of employment and experienced great pain while riding the bus to work.
During the case’s litigation, we asked the agency the following:
Interrogatory No. 12. Identify each and every job duty or responsibility of Complainant that you contend cannot be done at home in a telework capacity. State the reason for each duty or responsibility she couldn’t do on a telework capacity.
Response: Objection. This Interrogatory is argumentative, overbroad, unduly burdensome and irrelevant. Without waiving said objections and subject thereto, the Complainant’s duties are generally portable and, therefore, she can generally perform her duties while teleworking.
During the litigation we first attempted to settle the case before the assigned Administrative Law Judge. She suggested that although there is no specific job duty our client couldn’t perform, the agency could argue the “cup of coffee” defense. The essence of this defense goes something like this:
“There are many benefits to being in an employment setting that increase productivity for everyone. When one appears at a place of employment something magical happens. He or she can visit other employees and grab a cup of coffee to discuss elements of the job, organization, latest personnel developments and the most recent changes in policy. That employee can also understand his or her job better and how it relates to the organization overall. It is an enriching experience for everyone involved.”
Therefore, this argument posits that telecommuting for disabled employees may be at risk.
In accordance with the Judge’s attempt to supply the agency with a reasonable accommodation defense, we later took a deposition of our client’s supervisor and the following exchange took place:
Q. Okay. What about this whole essence of team work and you kind of sort of have to be there to like enjoy a cup of coffee with somebody to really get the flavor of the spirit or work environment type stuff, I mean doesn’t that employee miss out on all of that?
A. Well, being gone one day I wouldn’t think so.
Q. Okay. What about two days?
A. Hmm, I don’t think so because we’re still in communication even when they’re teleworking.
The agency was forced to settle with our client because they failed to demonstrate that there was not a single duty she couldn’t do from home and that in this case, the “cup of coffee” defense didn’t work.
As technology increases the ability to telecommute, more employers will recognize their potential liability in failing to accommodate disabled employees with telecommuting. More employers will utilize the “cup of coffee” defense to deny telecommuting. Don’t rest on your rights. Request Accommodation. If your employer denies it, ask for an explanation. If that explanation seems fishy, speak to a lawyer.