Telecommuting? Not Always Under the Americans With Disabilities Act

Telecommuting for work is a hot topic right now, with Yahoo's anti-telecommuting policy setting off a national debate. But if a worker claims he can't make it into work for medical reasons, must his employer allow him to telecommute as a "reasonable accomodation" under the Americans with Disabilities Act? Not always, according to the Tenth Circuit.

The case involved the late Doyle "Rocky" Brown, who was diagnosed with cancer that required surgery. After Brown exhausted his 12 weeks of unpaid FMLA leave, he gave his employer a doctor's note requesting three more weeks of leave. Despite offering to work "against doctor's orders," Brown was fired, in part because of excessive absences.

Brown sued his employer under the Americans with Disabilities Act, arguing they did not provide him with reasonable accommodations such as a telecommuting option. But a lower court held, and the Tenth Circuit later agreed in a February 2012 opinion, that Brown's employer did not, under the ADA, have to accommodate his work absences any further.

Why Telecommuting Didn't Work for the Tenth Circuit

Doyle Brown died during the course of litigation, so the personal representative of hs estate, Gabriella Valdez, was substituted as the plaintiff. Valdez appealed the lower court's decision to the Tenth Circuit.

Among her arguments: that telecommuting from home would have been a reasonable accommodation for Brown's physical limitations under the American with Disabilities Act. But the Tenth Circuit didn't agree.

When the Tenth Circuit rejected Valdez's telecommuting argument, it held that even though Brown could work from home, he could not perform all aspects of his job as a warehouse supervisor from home. For example, tasks like interacting with customers and employees would not work very well, or at all, if he'd been allowed to telecommute from home.

Lessons to Be Learned

Let this be a lesson that telecommuting is not always an easy solution for employers and employees. If an employee suffers from an ailment and is not going to get better, asking for a telecommuting option may not always be sufficient for the employer.

As the debate over Yahoo's telecommuting policy shows, some companies prefer in-person collaboration, believing that workers are more productive by being in the same room. For businesses that require workers to brainstorm and innovate, telecommuting may not cut it.

As for the ADA, it limits who is entitled to reasonable accommodations for a disability. The Tenth Circuit's unwillingness to require telecommuting as a "reasonable accommodation" just adds to the movement to bring work back to the office.

Employers and employees should review their work policies well before an event or an unexpected illness happens. Telecommuting is no longer as popular as it once was.

Related Resources:

• ADA Employment Discrimination: You Can't Sue Under Title II (FindLaw's Tenth Circuit Blog)
• Scent Sensitivity Not a Disability: Does This ADA Ruling Stink? (FindLaw's Fifth Circuit Blog)
• Ruling in Workplace Disability Discrimination and Retaliation Case (FindLaw's First Circuit Blog)
• Afraid of Heights? 7th Circuit Says You May Have ADA Lawsuit (FindLaw's Seventh Circuit Blog)