As technology improves, and the need for employees to be physically present at work to perform their jobs decreases, employers are facing increased requests from disabled employees to work from home as a reasonable accommodation. Where an employer has an existing telework policy, allowing an employee with a disability to work from home in accordance with the policy may be an easy way to accommodate the employee.
When an employer does not have an existing telework policy, or has a limited policy, a request to work from home from an employee with a disability must be analyzed the same way as any request for an accommodation: the employer must evaluate whether working from home will allow the employee to perform the essential functions of their job and whether the accommodation would pose an undue hardship to the employer.
With requests to work from home, the primarily point of contention is often whether the essential functions of the employee’s job include: being present at work; face to face interaction with co-workers or customers; on-site supervision of employees; and/or tasks that can only be performed at work. Multiple courts have found that regular attendance at work is almost always going to be an essential function of a job. However, as more employers embrace telework (and essentially admit that attendance on-site is not necessary for employees to perform their jobs), that principle will erode, and a number of courts have acknowledged that physical presence is not always an essential function of a job.
Even where the essential functions of a position would permit telework as an accommodation, an employer can deny a request if it would create an undue hardship. Factors considered as part of the undue hardship analysis include: the particular work-at-home schedule requested (part-time, full-time, as needed); the cost/availability of equipment (computer, high-speed internet, phone); and security issues created by allowing the employee remote access to the employer’s network.
Employers need to be prepared to deal with requests to work from home as an accommodation and engage in the interactive process to determine if telework is an option to allow a disabled employee to perform their job. Employers also need to review job descriptions and, where appropriate, revise descriptions to make clear that physical presence at work (either some or all of the time) is required. Finally, employers need to determine whether to adopt a telework policy for all employees (and make sure that if such a policy is adopted, disabled employees are given opportunities to take advantage of the policy).