Employers are often asked to allow an employee to telecommute as a reasonable accommodation for a disability. Should employers always grant such requests? What considerations come into play? Here’s a checklist to help employers consider and respond to a request to telecommute as an accommodation.
The Americans with Disabilities Act of 1990 (42 USC §§12101–12213), the ADA Amendments Act of 2008 (Pub L 110–325, 122 Stat 3553), and the California Fair Employment and Housing Act (Govt C §§12900–12996) all seek to provide equal opportunities to employees and applicants with disabilities. What makes these laws unique is that they all require that employers and employees engage in an interactive process to determine whether the employee is entitled to a reasonable and effective accommodation that will allow him or her to perform the essential functions of the job in question. More and more often, such accommodation includes a request to telecommute.
Here’s a checklist for employers to go through when a request to telecommute is on the table:
__ 1. Review the company’s telecommuting policy, if one exists.
__ 2. Evaluate whether a telecommuting arrangement is compatible with the employee’s position by reviewing the job description and speaking with the employee’s supervisor. This evaluation may include looking into the following issues: (a) Does the position need to be performed on-site? (b) Is face-to-face contact with coworkers, supervisors, clients, or customers at the worksite necessary? (c) Can equipment needed to work easily be replicated for work at home? (d) What is the nature and extent of supervision needed? (e) Does the position require reviewing, creating, or maintaining proprietary or otherwise sensitive information?
__ 3. If some degree of interaction with coworkers is required, evaluate whether a schedule whereby the employee works part of the time at the worksite and part of the time at home would be reasonable and effective.
__ 4. Evaluate the circumstances in which telecommuting arrangements have been approved or denied (both for disability and non-disability reasons) to ensure the decision is consistent with past practices.
__ 5. Document any decisions related to disapproval or termination of telecommuting.
__ 6. If a telecommuting arrangement is approved as a reasonable accommodation, develop an agreement with the employee on his or her schedule and a method to hold the employee accountable to the work hours agreed on.
__ 7. Assign work, monitor and evaluate performance, advance, reward/recognize, train and develop telecommuting workers in the same way as employees at the traditional worksite.
__ 8. Evaluate the efficacy of each employee’s telecommuting arrangement on an ongoing basis. Determine whether the telecommuting arrangement is effectively addressing the employee’s disability/restrictions; whether there has been a decline in employee performance; and whether there has been an adverse impact on the operations of the office.
__ 9. Make sure there are no wage and hour issues as a result of the arrangement. Review and certify time and attendance reports to ensure that telecommuting (hours worked) and absences during scheduled tours of duty are accurately recorded.
For practical guidance on all aspects of disability accommodation, including checklists and sample forms, turn to CEB’s Drafting Employment Documents for California Employers, chap 6. Also check out CEB’s Advising California Employers and Employees §§15.109-15.151.
Other CEBblog™ posts you may find useful:
- Disability Accommodation: The Big Picture
- 15 Steps to Help Employers Move through the Interactive, Accommodation Process
- 10 Steps to Hiring Without Violating Disability Discrimination Laws
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Filed under: Compliance/Best Practices, Employment Law, Legal Topics | Tagged: disability discrimination, employment discrimination, HR, human resources, interactive process, reasonable accommodation, telecommute agreement, telecommuting |