The Travails of the Telecommuting Accommodation

Q: An employee has asked to work from home because of his disability. Do I have to provide him with that option?

A: With technology making it easier than ever for people to work remotely, more employers are seeing requests to offer telecommuting as a reasonable accommodation of a disability. But, depending on the job, telecommuting may not be the best option, or even an option at all.

Retail store managers, truck drivers and flight attendants cannot perform the essential functions of their jobs from home. And some office jobs may require face-to-face interaction, active supervision, or access to in-office documents to perform their duties effectively. Marissa Mayer famously called all workers back to the office when she took over Yahoo in 2013, but other companies, such as Diebold, specifically recruit talent with the promise of a telecommuting arrangement.

So how does a company know where it can draw the line in denying a request for a telecommuting accommodation? The answer lies in the language of the ADA.

The ADA requires employers to consider each case individually, so a blanket policy prohibiting telecommuting should be avoided. Instead, consider the specific request in the context of the employee’s disability, and then analyze whether the requested accommodation will enable the employee to perform the essential functions of his job.

If an essential function of the job requires the employee to interact with others in the office, or access documents that are only available in the office, then a telecommuting option would not be a reasonable accommodation.  Another factor to consider is the ability of the employee to be supervised effectively from home.  Before reaching the conclusion that a telecommuting arrangement is not a reasonable accommodation, however, be sure that the evidence supports it.

Does the job description detail the requirement of face-to-face interaction? Is this an essential function of the job, or a marginal requirement? Can these functions be completed just as effectively using technology? These are all questions that should be considered before making a final determination.

On the flip side: Is “work from home” code for not working at all? Consider whether the employee actually can perform his job functions from home or whether the disability precludes him from performing his job functions regardless of location.

And remember that the ADA does not require employers to provide an employee with the accommodation of his choosing. Rather, employers must engage in the interactive process and can consider/offer other reasonable accommodations that may enable the employee to perform his job in the office.

The bottom line — there is no “one size fits all” approach when it comes to telecommuting as a reasonable accommodation. Analyze each case on its own facts, and determine the best possible solution for your employee and your business.

-Tracey E. Diamond

Discrimination in the “Room Where It Happens?”

Q.  I read somewhere that it is ok sometimes to choose employees of a particular sex, national origin or religion. Isn’t that discrimination?

A.  Federal, state and many local laws prohibit employers from basing employment decisions on any protected category, including an employee’s sex, national origin or religion. While there are certain exceptions, such as where a particular protected category is a bona fide occupational qualification, the exceptions are extremely narrow, as one Broadway show found out the hard way.

With scores of Tony Awards and sold-out crowds for months, it seems the Broadway show “Hamilton” can do no wrong. But its producers caused a stir recently when they posted an open casting call “seeking nonwhite men and women, ages 20s to 30s for Broadway and upcoming tours.”

“Hamilton” tells the story of founding father, Alexander Hamilton, through rap and hip-hop songs. One of the many unique characteristics of the show is that the actors portraying, Hamilton and the founding fathers, such as Thomas Jefferson, James Madison and George Washington, are played by African-American, Latino, and other ethnically-diverse actors.

Actor’s Equity, a union representing theater actors and stage managers, issued a statement that the casting notice was inconsistent with its policy of encouraging all individuals to audition for roles regardless of race, gender or age. And at least one civil rights lawyer argued that the notice violated the New York City Human Rights Law.

But does the casting notice violate federal discrimination laws? Title VII of the Civil Rights Act of 1994 makes it an unlawful employment practice for an employer to fail or refuse to hire any individual because of his or her race, color, religion, sex or national origin. However, it is not an unlawful employment practice for an employer to hire employees of a particular protected category in those instances where the protected category is a “bona fide occupational qualification” or “BFOQ,” reasonably necessary to the normal operation of that particular business. (Think of the Catholic Church only hiring Catholics as priests or a women’s clothing line only hiring women as models.)  The BFOQ exception has been construed very narrowly, and, in fact, Title VII does not even include “race” as one of the traits that it considers to be covered by the BFOQ defense.

The producers and creative team of “Hamilton” have been outspoken in their encouragement of diversity, stating that the musical showcases the story of “America then” told by “America now.” Nonetheless, in the absence of a BFOQ or certain other very narrow exceptions, any call for employees that excludes a particular group violates discrimination laws, and any exclusion based on race is unlawful. Ultimately, the show’s producers ended the duel in a draw — revising the casting notice to include language welcoming people of all ethnicities to audition.

-Tracey E. Diamond

Safety in the Workplace

Q.  The world feels like a scary place these days. In light of current events, what are my obligations with respect to providing a safe workplace for employees.

A.  You are not alone in asking this important question. The sad and horrific string of mass shootings — from Sandy Hook to San Bernadino to Orlando to Dallas to Baton Rouge — is causing many employers to take a hard look at their workplace violence policies and programs.

The federal Occupational Safety and Health Act (OSH Act) requires employers to provide a safe working environment. Under the OSH Act, an employer can be found liable if it failed to keep the workplace free from a hazard that employees were exposed to, and the following factors apply:

  1. the hazard is recognized
  2. the hazard was likely to cause death or serious physical harm
  3. there was a feasible and economically viable way to correct the hazard.

In addition to the OSH Act, there are various state laws that impose safety requirements on employers. And, if an employer hires or retains an employee and knows or should know that the employee poses a risk of harm to others, that employer could find itself liable for the tort claims of negligent hiring or negligent retention.

It seems these days that hazards can come from multiple sources — coworkers, family members of coworkers, customers or even strangers. Here are some best practices for establishing or updating your workplace violence prevention program:

  • Put in place a zero-tolerance policy with respect to all types of workplace violence and threats of violence.
  • Prohibit weapons of any kind in the workplace, subject to state laws permitting concealed weapons in a parked car.
  • Educate employees so they understand their rights and obligations.
  • Carefully screen applicants. This is tricky now because certain states and municipalities have instituted “ban the box” legislation, which prohibits employers from asking about an applicant’s criminal record in the employment application. In most jurisdictions, however, employers are permitted to check an applicant’s criminal record before making a final decision whether to bring the individual on board as an employee.
  • Take measures to increase physical security in your buildings, such as requiring employees to wear identification cards, locking doors and installing an alarm system.
  • Ensure that your company parking lot is adequately lit and secure.
  • Provide your employees with an evacuation plan in case of a dangerous situation, and periodically perform drills so that employees are educated properly on what to do in case of an emergency.
  • Provide resources for stress management, such as an employee assistance program.
  • Train managers on conflict management.

While it is impossible to erase all risk, a well-written workplace violence prevention policy, combined with employee training, physical security measures and proactive human resources controls, can reduce incidences of violence in the workplace and minimize the impact of any violence that does occur.

-Tracey E. Diamond

Getting Personal: When Medical Leave Questions Cross the Line

Q: An employee is asking to take medical leave. What sort of questions am I allowed to ask her?

A: Ask any HR generalist, and they will tell you that the Family and Medical Leave Act (FMLA) provides up to 12 weeks of job protection and continuation of health insurance benefits to employees who have a serious health condition. HR practitioners also know that they are permitted to seek information about an employee’s serious health condition to determine whether the employee qualifies for leave. But, how much can they ask, and what kind of medical questions are allowed?

The Department of Labor (DOL) recently provided some guidance to employers in the form of an investigation into the practices of several health system employers in Arkansas. The DOL concluded that, while it is acceptable to ask questions reasonably related to determining whether the employee qualifies for leave under FMLA, it is unacceptable to ask employees “intrusive and personal questions,” including asking employees to provide information outside the scope of the illness related to the request and to name prescribed medications. According to the DOL, such questions have a chilling effect on employees, who need to choose between revealing confidential medical information or foregoing needed leave.

Given this guidance, what types of questions are acceptable? As a general rule, be careful to limit questions to the medical condition at issue, and avoid questions about the employee’s general health. Permissible questions include, for example, the date the condition commenced, its expected duration, whether the condition caused an overnight stay at a hospital or other medical care facility, and whether the employee can perform any of her job functions due to the condition. Also, while it is permissible to ask a health care practitioner whether he has prescribed medication to the employee for the condition, it is not permissible to ask what medication was prescribed.

In addition, keep in mind that, if the employee does not qualify for leave under the FMLA – either because he is not eligible or has exhausted his leave – the employer still must consider whether leave is warranted under the Americans With Disabilities Act (ADA).  Like the FMLA, the ADA allows employers to request information about an employee’s medical condition to the extent required to determine whether the employee qualifies for leave as an ADA accommodation.

-Tracey E. Diamond

Welcome to HiringToFiring.Law

HiringToFiring.Law is your go-to blog for information and guidance on every phase of employment — from interviewing potential candidates, to the first day of work, to the difficult decision to let someone go. Our authors cover the intersection of employment law, human resources counseling and employment litigation, where no question is too small in the effort to protect employers from risk.

The blog is published by members of Pepper Hamilton’s Labor & Employment Group and edited by Tracey E. Diamond, an experienced employment lawyer and frequent writer and speaker on human resources issues. Check back frequently for the latest developments in employment law and tips to make sure you are in full compliance and adequately protected — jurisdiction to jurisdiction.

We welcome your comments and suggestions. To make a request for a post or ask questions, please email Tracey Diamond.