Telecommuting: Benefit or Accommodation?
While only 10 percent of U.S. workers currently work from home, one legal case working its way through the courts stands poised to force employers to re-think their telecommuting policies.
By Jill Cueni-Cohen
In 2012, a U.S. district in Michigan court acknowledged in EEOC v. Ford Motor Co. that employers are entitled to judge whether it is acceptable for their employees to work from home. However, the Sixth Circuit recently reversed the grant of summary judgment to Ford, saying the telecommuting request of one employee may have been a request for a reasonable accommodation, thereby sending the decision back to trial for a jury to decide.
Employment attorney Stephen Hirschfeld, of Hirschfeld Kraemer in San Francisco, says the appellate court's reversal has signaled a game-change in the way such cases will be handled in the future.
"The court has moved away from what has been a long-standing deference to employers in determining whether being physically present is an essential function of a job," said Hirschfeld. "This represents a significant change. I have seen the trends in the ADA change over the past 30 years, but the common denominator has historically been that the courts are highly deferential to employers when determining essential job functions."
Located in the Princeton, N.J. office of Fox Rothschild, employment attorney Wayne Pinkstone says that EEOC v. Ford is "reflective of the interplay between existing laws and advances in technology that allow for something that would not have existed 10 years ago. This case, at least in the Sixth Circuit, broadens the potential that offering telecommuting as an accommodation by an employer could be deemed reasonable under the circumstances."
Pinkstone advises HR leaders to keep apprised of case law and how it's interpreted. "This case in particular really changes the dynamic in dealing with accommodation issues," he says, acknowledging the fact that past opinions have said presence at work is almost always an essential function. "That might not be the case now, and it's important to keep up to date with these changes."
It's also important for HR to get involved in situations like the one presented in this case, says Pinkstone. "Companies as a whole must train their managers to review these issues with HR before taking action. The court is dealing with an important issue, but these occurrences are fact-specific and depend on the situation. "
Hirschfeld adds that the courts have also traditionally deferred to companies when they determine that being physically present in the office is essential. "That's a subjective decision," he says, pointing toward Marissa Mayer's famously criticized decision to ban telecommuting when she took over as CEO of Yahoo. "The historical position courts have taken is that these issues are for employers to decide. Courts and juries shouldn't superimpose their opinions on that."
"Employers now have to take into consideration a more expanded view of the workplace," says Veronica Gray, employment practice group chair of the Nossaman law firm, in Irvine, Calif. "And if you're going to take the position that a physical presence at the office is necessary, you're going to need to state the facts to really support that."
Gray advises employers to re-examine the way their job descriptions are written. "Be clear on what is an essential job duty and detail it. If the employee needs to be there, state why they need to be there. An employer has the burden to prove that physical presence in the workplace is an essential function."
A consequence of this case could be that more employees will ask for telecommuting as an accommodation, Gray notes, adding that, in the EEOC v. Ford case, the fact Ford already had a telecommuting policy made the judge think twice.
Hirschfeld says that a telecommuting policy indicates that the company believes that being physically present on a regular basis may not be essential for certain jobs. "But to take a draconian position by making everyone be in the office every day would go too far. That's why you want to look at job descriptions."
The question now is whether the court correctly determined that it's up to the jury to decide what an essential job function is; as well as whether deference should be given to a company in making these kinds of determinations.
Co-author of a work-at-home study conducted in China, John Roberts, an emeritus professor at the Stanford Graduate School of Business, says telecommuting should be the employer's decision, but advises management to be more open to telecommuting opportunities.
"Employers have to re-think their automatic assumption from the 1950s that you have to be in the office," he says. "They should be open to suggestions and take the lead in exploring whether people should be allowed to work from home." According to the 2013 study, about 10 percent of U.S. employees currently work from home.
The study, called "Does Working From Home Work? Evidence from a Chinese Experiment," gave Chinese call-center employees the option to work from home for nine months. Results included increased work performance, higher positive attitude and a cost savings to the employer.
"The problem is that people don't necessarily work as hard when they're not being controlled, but it's not clear how much more control the company has when you're at home or at the office," Roberts says. "The extent to which you measure people on performance and what they deliver -- rather than simply being in the office – well, you can do that at home as well as at work."
"Companies should not overreact to this right now by eliminating telecommuting policies," says Hirschfeld, noting this case could eventually end up in front of the Supreme Court. "In the meantime, look at job descriptions and clearly state whether employees have to physically be in the office … and use that language: in the office."
Pinkstone echoed Hirschfeld's concerns about taking telecommuting decisions out of employers' control. "In EEOC v Ford, the employee is saying that [working in the office] is not an essential function, but is she really the one who should be deciding that? I don't think so; it's something for the employer to decide. It is somewhat disconcerting that the court is taking this approach."
However, Berwyn, Pa.-based trial attorney Dan O'Meara, of Montgomery McCracken Walker & Rhoads, says he doesn't believe the courts are ever going to let employees dictate where they work.
"What it stands for at most is the proposition that employers may have to consider telecommuting," says O'Meara. "If an employee requests telecommuting as an accommodation for a bonafide disability, the employer should consider it and have a conversation with the employee about the details."
After the conversation, a trial run could reveal the best solution. "Management should think about the job designs they've put in place and to what extent those can be adapted to accommodate working from home. Then, you talk to the employees and see who would be interested in doing that, and then try it out as an experiment," advises Roberts, noting that his Chinese experiment revealed that workers are not always suited to function out of the office. "Your company won't know how well it will work until you try it."