Assessing Work-at-Home Requests and Potential “Undue Hardship” on the Employer

By Jenny Haykin, MA

Integrated Leaves & Accommodations
Puget Sound Energy

By Tom Sproger, MS

Ergonomics Consultant
Solutions Northwest Inc.

A senior disability manager from a financial services firm presented this accommodation challenge.

Working from home has become a popular accommodation request at our company. With the advanced technology available today, it is hard to argue that the essential functions of the job cannot be done remotely. However, many managers complain that associates who work remotely are just not as effective in contributing to the team because they are not physically present for informal communication during a workday. They are “out of sight, out of mind,” and harder to reach when small issues arise. How can my company articulate the importance of  being present with the team? Can a company ever justify that this could create an “undue hardship”?

Accommodation experts Jenny Haykin and Tom Sproger explain how to review work-at-home requests, including informal assessment of “undue hardship” on the employer.

First, it is important to determine if the employee’s restrictions can be accommodated effectively without telecommuting. The employer has the right to choose the least disruptive, effective accommodation.

If ongoing telecommuting is the only viable accommodation, and the employee can perform all of the essential functions from home, consider and document the anticipated business impacts of telecommuting. From there, assess if the impacts on the business are avoidable while still allowing telecommuting. If the employee is medically able to report to the worksite at a frequency that meets the needs of the business and the team while still primarily telecommuting, the impacts may be eliminated. If informal communications can occur using technology such as instant messaging, videoconferencing, etc., the “out of sight” concern may be moot. But if the business impacts are not avoidable and can be articulated in such a way as to convince a jury, yes, undue hardship could be considered justified.

In EEOC v Ford Motor Company, the US Court of Appeals for the Sixth Circuit decided in favor of the employer. The court concluded, “in most jobs, especially those involving teamwork and a high level of interaction, the employer will require regular and predictable on-site attendance from all employees,” and “most jobs would be fundamentally altered if regular and predictable on-site attendance is removed.” It is important to note, however, that Ford had already allowed telecommuting and found four essential functions that the employee could not perform at home. When all essential functions can be performed from home and no business impacts create a hardship, such a case is not likely to prevail if tested in court.

If it is not clear how the business will be impacted but there are concerns, offer telecommuting on a trial basis to assess potential problems. There may be positive business impacts that were unforeseen such as the employee might be more productive when working from home. If the employee experiences performance issues when working from home or is not available to colleagues when needed, resulting in lower productivity for the team, undue hardship may become evident.

Some employment law attorneys believe juries are more sympathetic when an accommodation places a hardship on other employees. In one case we observed, no one on a work team would be able to take time off for six months due to crucial deadlines while a couple of employees were medically unable to do their share. If it had been necessary to claim undue hardship in court, the employer would have had a relatively strong position.

A jury may accept the employer’s undue hardship defense if a business is negatively impacted, colleagues are harmed, or customers are negatively impacted to a significant extent, but it is important to look at all aspects of the request before it is denied.