As technology in the workplace continues to evolve, an increasing number of employees have the ability to perform their jobs from home. Through remote and web-based access, many employees can log-in to their work computers from their PCs and other portable devices, as if they are sitting at their work desk. This is a considerable convenience to the employee and, arguably, a benefit to the employer because the employee can perform work duties despite personal issues that may otherwise preclude it.
Inevitably, the benefits of telecommuting come into question when a disabled employee asks to work at home as a disability accommodation. It is clear under both state and federal law that an employer must make a reasonable accommodation to the limitations of an otherwise qualified, disabled employee, unless the accommodation would impose an undue hardship on the operation of its business. It has been determined that a reasonable accommodation may include job restructuring, and part-time or modified work schedules. Still, the question of how far an employer must go to protect itself from liability for failure to provide a reasonable disability accommodation remains. Can the employer be held liable if it denies telecommuting as a reasonable disability accommodation under the New Jersey Law against Discrimination (NJLAD) and the Americans with Disabilities Act (ADA)?
Many courts have held that an employer is not required to accommodate a disability by allowing the disabled worker to work by him or herself, without supervision, at home, where his or her productivity would inevitably be reduced. In fact, this has been noted as the majority rule.
For example, inVande Zande v. State of Wisconsin Dep’t of Admin., 44 F.3d 538 (7th Cir. 1995), which is illustrative of many cases that follow it, the United States Court of Appeals for the Seventh Circuit addressed plaintiff Vande Zande’s appeal from the trial court’s decision to grant summary judgment in favor of her employer — the State of Wisconsin Housing Division. Vande Zande, a paraplegic, was prone to develop pressure ulcers that required her to stay home from work as a clerical assistant for several weeks at a time. Vande Zande filed an action under the ADA, 42 U.S.C.S. § 12101 et seq., after her employer rejected her requests to work at home while she was out of work for eight weeks due to ulcers. The United States Court of Appeals for the Seventh Circuit affirmed summary judgment in favor of the employer. The court held, in relevant part, that an employer is not required to accommodate a disability by allowing the disabled worker to work, by herself, without supervision, at home. The court noted:
[W]e think the majority view is correct. An employer is not required to allow disabled workers to work at home, where their productivity inevitably would be greatly reduced. No doubt to this as to any generalization about so complex and varied an activity as employment there are exceptions, but it would take a very extraordinary case for the employee to be able to create a triable issue of the employer’s failure to allow the employee to work at home.
The court explained that a reasonable accommodation requires making some change that will enable the disabled employee to work, without an imposition of undue hardship on the employer. The duty of reasonable accommodation was satisfied in that case when the employer did what was necessary to enable the disabled employee to work in reasonable comfort. The Vande Zande court also noted that, if an employer goes further than the law requires — by allowing the worker to work at home — it must not be punished for its generosity by being deemed to have conceded to the reasonableness of so far-reaching an accommodation.
The Vande Zande ruling has been relied upon by many courts in rejecting work-at-home requests as reasonable disability accommodations. In Dicino v. Aetna U.S. Healthcare, 2003 U.S. Dist. LEXIS 26487 (D.N.J. 2003), the United States District Court for the District of New Jersey, relying on Vande Zande, granted summary judgment in favor of the employer on the employee’s claim brought pursuant to the NJLAD, N.J.S.A., 10:5-1, et seq., for failure to provide a reasonable disability accommodation. In Dicino, the employee suffered from chronic pancreatitis, and related abdominal and back pain, which made her unable to perform her duties as an account manager because of the job’s requirement that she drive 500 to 1,000 miles per week. The court in Dicino held, in relevant part, that the employer was not obligated to accommodate Dicino’s request to work at home as a claims processor. In fact, the court noted"[n]o reasonable jury could find that defendant failed in its duty to make reasonable accommodation under these circumstances."
Accordingly, it may seem that, as a general rule, employers are not required to allow their disabled employees to work at home as a reasonable accommodation. However, it is important to note that, where courts have held that allowing a disabled employee to work at home is not a reasonable accommodation, the rationale is rooted in the general belief that presence in the workplace is an essential element of most jobs. This should be instructive for employers. It follows that if an employee demonstrates that he or she can perform the essential functions of his or her job at home, that employee has successfully created a question of fact for the jury. As technology evolves, so, too, will telecommuting capabilities. Therefore, employers should decide these types of requests on a case-by-case basis, with specific attention to the essential duties of the disabled employee’s job.
Although in Vande Zande and Dicino both employers were granted summary judgment, the language used by the courts in these cases left room for a different result if decided under different circumstances. While the court in Vande Zande observed that "most jobs in organizations public or private involve team work under supervision rather than solitary unsupervised work, and team work under supervision generally cannot be performed at home without a substantial reduction in the quality of the employee’s performance," the court also recognized "this will no doubt change as communications technology advances." There is plenty of legal support for a factual approach to the determination, as opposed to a per se rule that work-at-home requests are unreasonable.
There are courts that, while rejecting the notion under the specific circumstances before it, recognized there may be an employee who can successfully present evidence that he or she can perform the essential functions of his or her job at home, making a work-at-home accommodation request reasonable. See, e.g., Kiburz v. England, 2008 U.S. Dist. LEXIS 55023 (M.D. Pa. 2008); Mason v. Avaya Communications, 357 F.3d 1114 (10th Cir. 2004). There are also courts that have gone so far as to hold the employer liable for failing to provide a reasonable disability accommodation when the employer refused to allow an employee to telecommute because, under those specific circumstances, the employee could perform the essential functions of his or her job at home.See, e.g., Smith v. Bell Atl., 829 N.E.2d 228, 242 (Mass. App. Ct. 2005).
In conclusion, the reasonableness of a work-at-home request for a disability accommodation may hinge upon the specific, essential job duties of the disabled employee. The workplace is ever-changing, as is the law that governs it. As technology evolves, many employees will be able to perform the essential functions of their jobs from home. Employers should pay close attention to the individual employee’s job and at-home capabilities, before it refuses to allow a disabled employee to work at home as an accommodation. Otherwise, the employer may expose itself to liability under both state and federal disability law. •