The introduction of communication and computer technology in the workplace and the desire of employees to strike a delicate balance between family and work have forced employers to grapple with the concept of telecommuting. Telecommuting may increase productivity, curb turnover, limit expenses, and perpetuate job loyalty. Many times, however, it is not feasible for employees to work at home. Thus, what are the legal considerations when an employee asks, "Why can’t I work from home?"
The American with Disabilities Act (ADA) provides the legal predicate for most telecommuting requests. An employee may request to work from home to accommodate a medical condition. The Equal Employment Opportunity Commission’s Enforcement Guidance on Reasonable Accommodations in referencing federal regulation 29 C.F.R. § 1630.2, states that the employer is obligated to evaluate the effectiveness of the telecommuting request and whether it would pose an undue hardship.
A federal district court case, Whillock v. Delta Air Lines, which was affirmed by the Eleventh Circuit Court of Appeals, is also instructive for Florida lawyers. There, the district court explained that employers are generally not required to accommodate an employee by allowing the employee to work from home. The rationale being that attendance is typically an essential function of the employee’s job.
In Delta, the plaintiff was employed as a Reservation Sales Agent and had chemical sensitivities that made her unable to perform her job activities outside her home. The district court held that Delta’s need to evaluate, monitor and counsel its agents as well as security concerns related to the agent’s equipment proved that working at home was not a reasonable accommodation. More importantly, Delta did not allow any agent to work from home.
Many employers do permit select employees to work from home. In such circumstances, the employer should not only consider its obligations under disability discrimination laws, but also whether the decision would constitute job discrimination on the basis of a protected class such as race or gender. Florida lawyers should also be cognizant of the Telecommuting Program for state employees outlined in Florida Statutes §110.171, worker’s compensation laws and Occupational Safety and Health Administration regulations.
In short, as employers increasingly confront telecommuting as an alternative work arrangement, Florida lawyers will be required to assist clients with developing proactive and prudent approaches to telecommuting. At a minimum, employers should construct detailed job descriptions and telecommuting policies and ensure that there is a consistent application of telecommuting policies and practices. Telecommuting agreements should also be considered.
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