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.
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.