Telecommuting an option for disabled employees
Published 02/18/05

Telecommuting may be a reasonable accommodation when dealing with disabled employees under federal disability employment discrimination law.

A federal jury on May 26, 2000 awarded $1.5 million to an insurance underwriter with Crohn's disease who claimed her employer violated the Americans with Disabilities Act ("ADA") when she, as part of her telecommuting schedule, was refused in her request to work continuously at home when her Crohn's disease flared up.

This award came after the United States District Court for the Eastern District of Pennsylvania on February 1, 2000 denied the employer's summary judgment motion on that claim. The case was Davis vs. The Guardian Life Insurance Company of America . Ms. Davis, a Guardian insurance underwriter, had claimed among other things that Guardian had violated the ADA in refusing to accommodate her telecommuting schedule as a result of her Crohn's disease.

Crohn's disease is a disorder that produces a variety of symptoms including abdominal pain, fever, diarrhea, extreme pain and dehydration. Guardian acknowledged that Crohn's disease was a disability under the ADA, but argued that they had done enough in allowing Davis to be on the telecommuting schedule, merely requiring that she come into the office two days a week. Guardian argued that this two-day a week in-office requirement was reasonable primarily because of: (a) the extreme difficulty and costs for Guardian to allow Davis to store records at her home, or transport records back and forth from her home; (b) file accessibility for other Guardian employees; (c) required interaction between team members; and (d) training and development on underwriting issues and procedural changes are not always efficiently communicated via telephone for employees not in the office.

The Court noted that Davis' father-in-law had offered to transfer the files back and forth from her home during the times that her Crohn's disease had flared up; and Davis was willing to coming into the office two days a week when she did not have a flare up. However, when one such a flare up would occur, it could last for two to three weeks. Davis argued that in addition to the telecommuting schedule permitted by Guardian, she was entitled to a further accommodation for a two to three week amnesty from attendance at the office for the periods when the Crohn's disease flares.

The Court accepted the fact that attendance is normally an essential element of any job, however, everyday attendance need not be an essential element of the job and must be determined on a fact specific basis. For example, the Court cited a case where an employee of an airline who suffered from Crohn's disease was not entitled to recovery under the ADA because as a result of his disease he was not able to regularly attend work when doing so was considered an essential job function. The Court in reviewing the facts in this case denied the employer's request for summary judgment and let the case go to trial.

With technological advances such as e-mail, and possibly in the future an increasing access to video teleconferencing, some jobs are going to able to be handled primarily through a home office. Employers therefore need to consider that fact in formulating a reasonable accommodation for a disability under the ADA.

Obviously telecommuting will not be a reasonable accommodation for some jobs, yet, an employer must consider whether or not weekly attendance is truly an essential job function and analyze the likelihood a judge or jury will agree with the employer.

J. Daniel Marr is a director and shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and business persons on a variety of legal issues, including employment, and advocating on their behalf. You can reach Attorney Marr by e-mail at: dmarr@hamker.com

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