Telecommuting as reasonable accommodation? Court says, “Yes.”

Telecommuting as reasonable accommodation? Court says, “Yes.”

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By Lisa Peck and Daniel Velton

When Yahoo’s Marissa Mayer abandoned the company’s wildly popular telecommuting policy, the move was met with a storm of protest.  As an industry leader, Yahoo’s innovative flex options were seen as a welcome paradigm shift of where, how, and by whom work gets done.

Mayer’s move reflected a common misconception that telework creates a dangerous “out of sight, out of mind” career dynamic. Employers worry about reduced performance, decreased productivity, increased obligations, and lack of control or oversight.  Employees fear exclusion from opportunities and advancement, loss of benefits, being ostracized or devalued for lack of “face-time.”

Yet, telework is sometimes the best choice for worker job satisfaction and employer competitive advantage. Technological advances, evolving societal values, and legal progress affecting workers’ rights make telework not only a possibility, but also a practical necessity in today’s workplace.

The reasons for teleworking are as diverse as the people seeking alternatives to physically being in the workplace all day, everyday. For example:

  • An employee who is able to work a full-time schedule may have an illness preventing him from physically being in the office full-time;
  • A start-up business is in dire need of more workers, but it does not have the resources to physically expand its workspace or move to a bigger location;
  • A single parent needs flexible work arrangements to work from home to provide care for a disabled child;
  • An employer suffers pointless downtime as a result of horrendous commuter traffic, and needs a solution.

In these situations, telework is a win-win for everyone.

Recently, in Equal Opportunity Employment Commission v. Ford Motor Co., the United States Court of Appeals for the Sixth Circuit issued a groundbreaking opinion recognizing that an employee may be entitled to “remote work” (telework) as a reasonable accommodation for his or her disability, along with more traditional options such as modification of workstations, flexible work-hours, frequent breaks, job transfers or reassignments, and finite leaves of absence.

In its decision, the Sixth Circuit Court differentiated “remote work” from “flex-time” arrangements – distinct concepts that are often confused. Although employers may reasonably require a worker’s adherence to a regular schedule during predictable business hours, the essential functions of many jobs do not require in-person attendance.

The court reasoned that, “the law must respond to the advance of technology in the employment context, as it has in other areas of modern life, and recognize that the ‘workplace’ is anywhere that an employee can perform her job duties.” It recognized a cultural shift in that “communications technology has advanced to the point that it is no longer an ‘unusual case where an employee can effectively perform all work-related duties from home.’”

The Federal government recognizes telework as an established component of the modern workplace. The Telework Enhancement Act of 2010 required federal agencies to establish a framework making telework available to federal employees. The EEOC published Guidance to put employers on notice that blanket prohibitions on work-from-home policies may constitute actionable discrimination against disabled employees. The U.S. Department of Labor warns employers against misuse of telework policies for reasons prohibited by law, such as excluding employees from telework or forcing telework upon employees based on improper motives. Yet, during recent outbreaks of the H1N1 virus, the DOL suggested telework as an option for employers to minimize the spread of illness and worker absence. Similarly, OSHA has updated provisions relating to the safety of and recordkeeping for teleworkers at remote worksites to protect both employers and employees.

Telework also offers creative solutions to employers. For instance, employers reasonably worry about consistent workflow during an employee’s leave of absence, and the added expense and logistics of covering the absence. However, an employer may consider temporary reassignment of an employee to a telework position as an alternative to full-time leaves of absence, and it may consider combining intermittent leave with telework to both extending the time over which leave may occur while keeping work current.

Some employers, including the U.S. Patent and Trademark Office, have taken teleworking to a new level with “hoteling,” a practice allowing rotation of office space while other employees work from home. Other trends breaking down the walls of our workplace are concepts of work-anywhere, “BYOD” (or, “Bring Your Own Device”), walking meetings, and other innovations to improve both work-life balance and productivity.

Telework opens doors for both employees and employers.  The recent decision recognizing telecommuting as a reasonable accommodation is an important step toward workplace equality.  By acknowledging that workers can efficiently perform and thrive  in alternative “workplaces,” the court has set a welcome precedent in favor of innovative workplace policies that increase employment opportunities for all.

Lisa Peck

About Elizabeth Peck

Lisa is a partner in the firm of Peck Law, LLP with offices in Salt Lake City, Utah and San Jose, California.  She practices employment, discrimination, and civil rights law. She is a past ambassador for the National Multiple Sclerosis Society, and having been diagnosed with MS in 1996, Lisa remains actively involved in educating the MS community, their caregivers, and physicians about their rights and responsibilities under the ADA and the FMLA.  Lisa splits her time between California and Utah, and she is an avid cyclist, skier, lacrosse player, and surfer.

Bring your personal life back into the office 1

Bring your personal life back into the office

By Lisa Peck

“Don’t bring your personal life to the office” is a time worn adage that is simply not possible for a vast proportion of the modern-day workplace.  Today’s employees are challenged to meet their workplace expectations in the face of what are often significant family care issues, as well as being a primary breadwinner.  One reason for this is the influx of women with children into the workplace; less obvious reasons involve society’s changing concept of “family” to embrace multi-generations in one household, non-traditional families, blending of families (or, step-families), same-sex partnerships, and workers of many different stages of life and family circumstance.

As a result, Family Responsibility Discrimination (“FRD”) – employment discrimination based on an employee’s responsibilities to provide care for family members – has gained recognition as a form of workplace discrimination comparable to gender, disability, race, national origin, or religious discrimination.

FRD is not only directed at new mothers.  It rears its head when an employee must care for any aging, seriously ill, or disabled family member, whether it is a spouse diagnosed with Multiple Sclerosis, an aging parent or grandparent showing signs of dementia, a child born with a serious disability who will require lifelong medical intervention, or a sibling seriously injured in a car accident.

Without protection against FRD, these real-life, difficult, and everyday challenges may result in termination of employment, or force employees into a wrenching choice between preserving their livelihood and caring for their loved ones.

FRD is most often recognized when an employer discriminates against an employee because of family care responsibilities, or treats the employee less favorably than other employees based on false assumptions that caregiving responsibilities will impair job performance or lessen job commitment.  FRD also can stem from an employer’s good intentions in trying to “help” an employee’s caregiving responsibilities by taking such actions as decreasing hours, reassigning duties, or reducing job functions.

The law does not consistently recognize FRD as a distinct form of workplace discrimination, but there is recourse for some situations.  Under federal law, the Family & Medical Leave Act (“FMLA”) protects eligible employees who need leave to care for a seriously ill family member. The Americans with Disabilities Act (“ADA”) and the Rehabilitation Act preclude discrimination against a qualified employee based on her “association” or relationship with someone with a known disability. The U.S. Equal Employment Opportunity Commission issued enforcement guidance on FRD, and proactively suggested “best practices” to employers to prevent FRD.  The Employment Retirement Income Security Act (“ERISA”) prohibits employer discrimination against an employee that interferes with his exercise of rights under an employee benefit plan.

California provides similar protections. California’s Family Rights Act precludes discrimination and offers job protection for eligible employees needing time off to care for a seriously ill family member, similar to FMLA protections.  Akin to the ADA’s association clause, the California Court of Appeals in Rope v. Auto-Chlor System of Washington, Inc., (Cal. App 2d, 2013) recognized an employee’s right to seek recourse under California’s Fair Employment and Housing Act (“FEHA”) for association-based disability discrimination.  California offers Paid Family Leave (“PFL”) under its disability benefits program (providing wage replacement to those workers taking leave for family care), and legislation recently passed to enlarge the definition of “family” to include grandparents, grandchildren, siblings and parents-in-law for purposes of PFL.

However, California rejected corresponding legislation to provide job protection to workers who take PFL, and it declined to extend employment discrimination protections under the FEHA to include “familial status.”  In contrast, San Francisco adopted a “Family Friendly Workplace Ordinance” effective January 2014, applicable to all San Francisco City and County employees working for employers with 20 or more city-based employees.  It further gives covered employees the right to ask for flexible or “predictable working arrangements” for their family caregiving responsibilities.

This is the wave of the future. Family care responsibilities affect all kinds of workers: women/men, young/old, single/attached, parents/childless, low/high wage earners, public/private employees, and employers of all sizes and industries.  If you work and you have family, FRD may well affect you and your family at some point in your working life. Grassroots efforts are essential to creating pressure for change.

Our community is made up of families, and FRD protection has long since become a community matter.  So, by all means – bring your personal life to work – and to local, state and national officials – to insure legal protection for everyone.

 

 

Lisa Peck

About Elizabeth Peck

Lisa is a partner in the firm of Peck Law, LLP with offices in Salt Lake City, Utah and San Jose, California.  She practices employment, discrimination, and civil rights law. She is a past ambassador for the National Multiple Sclerosis Society, and having been diagnosed with MS in 1996, Lisa remains actively involved in educating the MS community, their caregivers, and physicians about their rights and responsibilities under the ADA and the FMLA.  Lisa splits her time between California and Utah, and she is an avid cyclist, skier, lacrosse player, and surfer.

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