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Are You Entitled to Telecommute if You Have a Disability under the ADA?

Telecommuting has become increasingly popular as business is conducted more frequently online. But is a company obligated to give its employees the option to telecommute as an accommodation under the Americans with Disabilities Act?

A recent Sixth Circuit Court of Appeals Court said yes (maybe). Jane Harris was a "resale steel buyer" for Ford. Although she worked primarily on the phone and at the computer, she was also expected to meet personally with suppliers. Her co-workers said that they could not imagine being able to do their jobs remotely. Although some workers were allowed to telecommute, they could do so no more than two days a week.

Ms. Harris was afflicted with irritable bowel syndrome, which caused her to have unexpected embarrassing accidents. She requested permission to telecommute four days a week. Ford proposed other reasonable accommodations, including moving her desk close to the restroom and letting her transfer to another position that was more conducive to extensive telecommuting. Ms. Harris refused both of these proposed accommodations, and filed a disability discrimination charge with the EEOC.

Then she got a poor performance review from Ford and was terminated. The EEOC sued on her behalf under the Americans with Disabilities Act for disability discrimination and retaliation. A federal district judge in Michigan ruled for Ford and threw out the case, but a majority of a three-judge panel of the Sixth Circuit reversed that decision on appeal, meaning that the EEOC will get a jury trial on both the failure to accommodate and retaliation claims.

According to the Court, "the ADA directs us to consider several factors when determining whether an accommodation imposes an undue hardship on an employer:(1) the nature and cost of the accommodation, (2) the financial and personnel resources of the affected facility, (3) the resources of the employer as an entity, and (4) the structure and functions of the employer's workforce. Although setting up a home workstation for Harris might entail some cost, considering Ford's financial resources and the size of its workforce, this cost is likely to be de minimis. Indeed, Ford has created a written policy in which it pledges to absorb these costs for all employees approved to telecommute. Therefore, Ford has not met its burden of proving that a telecommuting accommodation, even if reasonable, would create an undue hardship."

The takeaway? If you are suffering from a disability, engage with your employer about telecommuting as an option. You are entitled to such an accommodation under the ADA.

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