Q&A with Tanya Bryant
Court’s ruling on telecommuting can affect Oklahoma businesses
Q: What should employers do to accommodate remote work?
A: Telecommuting is a work arrangement that allows employees to work at home or at some other off-site location for all or some of their regularly scheduled work hours. The Americans with Disabilities Act requires employers to reasonably accommodate otherwise qualified employees with disabilities. An employee is otherwise qualified if he or she can perform the essential functions of the job with or without reasonable accommodation. Whether an employee can be accommodated for a specific job is a fact-intensive inquiry. Employers are not required to make an accommodation if it would cause an undue hardship. Although the ADA and the Equal Employment Opportunity Commission do not mandate that employers always offer telecommuting programs to employees, the recent decision from the 6th Circuit in the EEOC v. Ford Motor Co. case should alert employers that in certain situations, allowing an employee to telecommute may be a reasonable accommodation.
Q: How could the EEOC v. Ford Motor Co. case affect Oklahoma employers?
A: In Ford, the employee, a resale buyer, made a request to her employer to work from home due to her disability, irritable bowel syndrome. The employee’s job duties included purchasing and reselling steel. Ford denied the employee’s request because it deemed that being in the office was an essential function of her job, placing emphasis on teamwork and face-to-face problem solving. The court, however, found evidence that much of the work could be performed by telephone or video conference. Additionally, Ford had permitted other buyers to work from home. Therefore, the court allowed the employee to proceed with her ADA failure to accommodate claim.
In light of this decision, employers should be prepared to receive more requests from employees to telecommute. Employers should engage in the interactive process with the employee to determine whether the employee’s request is reasonable. The reasonableness will depend upon the written job descriptions and the job duties the employee actually performs. Employers should identify any job duties that can’t be performed remotely and should be prepared to explain any decision made regarding the grant or denial of a request to telecommute.
Q: What are the essential elements for an employer’s telecommuting policy?
A: An employer’s telecommuting policy should clearly define the positions that may be performed remotely. The policy also should reflect that telecommuting requests will be considered on a case-by-case basis, taking into account whether the employee’s physical presence at the work site is indeed an essential function of the job. The policy also should address how to handle time-keeping, expenses, communications with supervisors, attendance at meetings, equipment and work supplies, data security, employee productivity and workers’ compensation issues. Employees should be required to sign a telecommuting agreement that outlines the employee’s obligations and duties while telecommuting. The agreement should include language that the employer has the right to cancel or suspend telecommuting privileges at any time.
PAULA BURKES, BUSINESS WRITER