Milonic JavaScript Menu is only visible when JavaScript is enabled
DMI home

Telecommuting is Not Just a Work-Life Balance Issue, It is An ADA Accommodation Issue for Employers

In the last few weeks, many of you have probably been keeping tabs on the continuing debate on telecommuting and work-life balance, with Yahoo's Marissa Mayer and Facebook’s Sheryl Sandberg weighing in on the issue.  

Employers must consider, of course, the employee relations aspects of flexible work arrangements.  Balancing business needs and supporting employees seeking a better balance is no small task.  

However, there is another important legal angle, with respect to flexible work arrangements, employers must consider.  This relates to an employer’s obligation to provide such arrangements as a reasonable accommodation under the Americans with Disabilities Act (ADA).   

The EEOC takes the position that flexible work arrangements are a form of reasonable accommodation that an employer may have to provide to disabled employees.  See EEOC’s Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, October 17, 2002, 

However, courts evaluating an employee’s request to work from home have reached different conclusions as to whether it constitutes a reasonable accommodation.  In a recent federal court decision, an employer’s decision to deny a telecommuting arrangement was upheld and found not to violate the ADA. 

In EEOC v. Ford Motor Company, a Michigan federal court agreed with employer Ford that a telecommuting arrangement under the particular circumstances in that case was too impractical and that it did not need to offer the arrangement to an employee as an accommodation.  No. 11-13742 (E.D. Mich. 2012).  In its complaint, the EEOC alleged that Ford violated the ADA when it refused to let an employee participate in its telecommuting program as a reasonable accommodation for her gastro-intestinal condition, placed her on a “performance enhancement plan,” and discharged her only months after she complained about being denied an accommodation.  

In granting Ford’s motion for summary judgment, the court first reasoned that the employee, who had a pattern of excessive absenteeism, was not a “qualified individual” under the ADA because she was absent more often than she was at work and “basic attendance is a requirement of most jobs.”   

The EEOC argued that attendance was not an essential function of the employee’s job as a resale buyer because she could perform the essential functions of her position from home.  Although the employee professed that she could do the job from home via the phone and the computer, the employer disputed this assertion, noting that her request to work from home for up to 4 days per week was untenable because she needed to have face to face contact with buyers and sellers, visit supplier sites and engage in problem solving meetings on short notice.  The employer argued that her frequent, unpredictable absences from work negatively impacted her performance and increased the workload for colleagues.  The court deferred to the employer’s reasoned business judgment over the employee’s personal opinion and found that the resale buyer position did not lend itself to frequent, unpredictable workdays out of the office.  

Employers seeking to argue that telecommuting is not a reasonable accommodation under the ADA should examine some of the factors considered in EEOC v. Ford Motor Company 

  • Does the job description as well as the actual job responsibilities demonstrate that the position requires regular, face to face contact?  
  • Will the employee’s lack of physical absence in the office prevent the employee from satisfactorily completing certain tasks?  
  • Will the employee be able to adequately supervise subordinates from home?  
  • Will the employee’s absence from work negatively impact the job responsibilities of others?   

    Of course, an employer must always engage in the interactive process with an employee seeking an accommodation and must consider alternate accommodations even where the employee’s requested accommodation, such as telecommuting, proves untenable.  While the employer in EEOC v. Ford Motor Company was successful, it was due to the employer’s ability to show it had conducted an individualized assessment of the person’s position and the reasonableness of the requested accommodation.    

    This blog should not be construed as legal advice, as pertaining to specific factual situations or as establishing an atttorney-client relationship.




Significant ADA Settlements Continue to Highlight Potential Exposure for Employers Seeking to Implement Maximum Leave Policies

Two recent settlements in cases filed by the Equal Employment Opportunity Commission (“EEOC”) highlight the continued risks associated with employers’ maximum leave policies as well as employer practices of requiring too much information from an employee to support a request for use of paid medical/sick leave.


EEOC v. Dillard’s, Inc.



In 2008, the EEOC filed a lawsuit against Dillard’s Inc., a national retail chain, alleging that its medical leave of absence policy violated the ADA insofar as it required employees to disclose personal and confidential medical information in order to be approved for sick leave and called for the automatic termination of employees whose medical/sick leave extended beyond the maximum amount of time allowed under the FMLA.  EEOC v. Dillard’s, Inc., No. 08-1780 (S.D. Cal. 2008).  The lawsuit alleged that Dillard’s Inc. maintained a policy that in order for an employee to utilize medical/sick leave, the employee was required to disclose the exact nature of the medical condition. 


According to an EEOC press release dated December 18, 2012, Dillard’s Inc. entered into a three-year consent decree requiring it to pay $2 million to identified victims and establish a class fund for unidentified victims of its unlawful law policy.  Dillard’s Inc. is also required to hire a consultant to review and revise its policy, provide training to supervisors and staff on ADA compliance and develop a centralized tracking system for employee complaints of disability discrimination


EEOC v. Interstate Distribution Co.


Interstate Distribution Company (“Interstate”) resolved its dispute with the EEOC over its maximum leave policy for an even greater amount -- $4.85 million.  Specifically, in the suit against Interstate, the EEOC alleged that its maximum leave policy, which resulted in the automatic termination of employees whose leave extended beyond twelve weeks without consideration of reasonable accommodations which might enable the employee to return, ran afoul of the ADA.  The settlement reached also extends beyond monetary penalties and includes, among other things, an injunction prohibiting Interstate from engaging in discrimination or retaliation on the basis of disability, a mandate that Interstate revise its policies to comply with the ADA and include reasonable accommodations and a mandate that Interstate provide mandatory periodic training on the ADA to its employees.  EEOC v. Interstate Distribution Co., No. 12-2591 (D. Col. 2012).


As has been previously reported, (See, Duane Morris Institute, ADA Compliance Blog at, the EEOC continues to challenge employer leaves of absence policies containing maximum leave provisions, as well as policies which require employees to identify the specific nature and extent of a disability it order to utilize employer-provided paid leave time such as sick days.


To reduce the likelihood of similar challenges, employers should implement the following policy changes:


·  Employer sick leave policies should be reviewed to ensure that they do not require an employee to specify the specific nature and extent of a medical condition in order to utilize typically-provided paid sick leave. 


·  If an employer maintains a policy providing for a fixed leave period (e.g., 12 months of leave in a rolling 12 month period), the employer must include an explicit statement in the policy that an employee may be eligible for leave as a reasonable accommodation, even if the employee is not eligible for or has exhausted the company-provided leave. Similarly, the employer must also include a statement that in the event an employee is not eligible for or has exhausted FMLA leave, the employee may still be eligible for leave as a reasonable accommodation.


·  Managers and supervisors must be trained to notify human resources of all leave or time-off requests to ensure that the employer is timely engaging in the interactive process. 


·  If an employer maintains a no-fault attendance policy, it should ensure that it does not "charge," and thus discipline, an employee for absences that are covered by the FMLA or for conditions that qualify as "disabilities" under the ADA.


·  Employers should eliminate all statements from leave and attendance policies stipulating that an employee must be able to return on full capacity, without restrictions, in order to return to work.


·  Employers should implement a practice of communicating with employees, in advance of and in anticipation of their return-to-work date, to confirm when they are returning and whether they will be requiring any additional accommodations, such as additional leave.



EEOC Continues to Target Inflexible Leaves-of-Absence, Attendance Policies

Over the last few years, the EEOC has challenged employer leaves of absence and attendance policies.  

The EEOC is critical of employer policies providing for inflexible, fixed leave periods as well as policies requiring an employee to be able to return to work at full capacity after a leave of absence. 

The EEOC's view that such policies violate the Americans With Disabilities Act has resulted in significant settlements, with large financial liabilities for employers.

My recent article on the EEOC's focus on employer leaves of absence and attendance policies,
first published in the Legal  Intelligencer, 
reviews recent EEOC settlements as well as outlines specific revisions for revamping your organization's leaves of absence and attendance policies and protocols. 



EEOC Issues Final Regulations Under ADA Amendments Act

This morning, the Equal Employment Opportunity Commission issued final regulations implementing the ADA Amendments Act.  

As you will recall, the ADA Amendments Act went into effect on Jan. 1, 2009.  The Act provides that whether an individual’s impairment is a disability should be construed “broadly.”  The Act also significantly expands the definition of what it means to be
“regarded as” disabled. 
The long-awaited final regulations set forth principles to guide the determination of whether an individual meets these definitions. 


The final regulations will be published in the Federal Register on Friday.  An advance copy of the final regulations, accompanying Question and Answer documents and a fact sheet are available on the EEOC website at

An extensive analysis will be provided by Duane Morris and posted on this blog at the beginning of next week. 




ADA Compliance

Insight on disability discrimination legal developments and employer obligations to reasonably accommodate disabled individuals under the Americans with Disabilities Act from the Duane Morris lawyers.

Search ADA Compliance's blog

« April 2014
© 2009- Duane Morris LLP. Duane Morris is a registered service mark of Duane Morris LLP.
The opinions expressed on this blog are those of the author and are not to be construed as legal advice.