Telework and the ADA
Is Working at Home Finally a Reasonable Accommodation?
Michael A. Valenza |
Posted Monday, January 10, 2005

Abstract

Introduction

Statutory Definitions

Telework as a Reasonable Accommodation

Conclusion

Abstract

The Americans with Disabilities Act (ADA) requires employers to provide reasonable accommodations for qualified disabled workers in order to achieve a broad social policy of ending disability-based discrimination in the workplace. Such reasonable accommodations can include modifications and adjustments to the job application process, work environment, job performance, and access to benefits and privileges. As technology advances and working from home becomes more entrenched in the workplace, certain disabled workers in specific information-based occupations should be allowed to work from home as a reasonable accommodation under the ADA.

Despite the ADA's requirement that an accommodation be determined on a case-by-case basis, in 1995 the Seventh Circuit established the presumption that telework is generally inefficient and is justified only in the "extraordinary case." The decision included a caveat that this situation would likely change as technology advances. However, subsequent courts continue to cite this decision (without the caveat) and its presumption against telework, thereby perpetuating a strain of thought that runs contrary to the spirit of the ADA.

This article includes recent studies that nonetheless reflect the steadily rising number of teleworkers in the general workforce, suggesting that telework is a very reasonable accommodation in today's business and technological climate. Statistics revealing the efficiency and prevalence of telework now suggest a disavowal of the presumption that home-based work is inefficient and therefore unreasonable. Courts must now recognize this technological advance and apply the law as it was intended, on a case-by-case basis.

Introduction

As the Information Revolution continues to redefine the idea of the workplace, certain employees who perform information-based work are afforded the opportunity to complete some or all of their work from home. Commuting digitally via phone, fax, and email allows more workers than ever to realize the benefits of a virtual workplace. A survey conducted by the Dieringer Research Group in 2003 revealed that between 2001 and 2003, the number of American employees who worked from home at least one day per month increased by nearly forty percent.

Telework, or telecommuting, has also been actively promoted by the federal government as "an important and attractive work option" for employees, employers, and society as a whole. With respect to disabled workers, President George W. Bush established the New Freedom Initiative in February 2001, which proposes a tax incentive for employers who equip disabled employees with computers and Internet access in their homes. The initiative also established the Access to Telework Fund, which provides federal funding to state-run organizations that help disabled workers finance home office equipment.

As working from home becomes more common among employees in general, and disabled employees in particular, employers require a more current appreciation of how telework fits into the Americans with Disabilities Act's (ADA) concept of a "reasonable accommodation." In determining what reasonable accommodation is appropriate for a disabled employee, the ADA, its underlying federal regulations, and the Equal Employment Opportunity Commission (EEOC) all provide general guidance to employers.

This article will provide working definitions of the many terms encountered in the process of determining a reasonable accommodation. It will discuss telework as it fits into that regulatory framework. It will also relate recent federal court opinions on the matter, showing how presumed conceptions of telecommuting's inefficiencies have distracted some employers and courts from the underlying purpose of Title I of the ADA, which is employment for disabled workers through reasonable accommodations. Because early cases often focused on "inherent inefficiencies" and unspecified cost-benefit analyses, recent studies on the benefits of telework suggest the bases upon which these opinions were formed are no longer relevant. Based on these resources, the article will examine whether telework has received adequate consideration as a reasonable accommodation and suggest that the "reasonableness" of telework increases as telecommunications technology advances.

Statutory Definitions

The Americans with Disabilities Act provides that no employer "shall discriminate against a qualified individual with a disability because of the disability." The statute describes the term "discriminate" as including, among other things, "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee," unless the employer can show that the accommodation would cause an undue hardship. Within this rather succinct statutory mandate, a number of terms, tests, and requirements have been established to distinguish employees covered by the ADA from those who are not covered. Some terms that require clarification in the process of determining an appropriate "reasonable accommodation" include: disability, qualified individual, essential functions, reasonable accommodation, and undue hardship.

Under the ADA, an individual is considered "disabled" if at least one of three conditions is met: a major life activity is substantially limited by a physical or mental impairment, a record of such an impairment exists, or the individual is thought of as having such an impairment. A "qualified individual with a disability" is a disabled person who meets all the job requirements (such as skill, experience, education, etc.) and can perform all the essential functions of the job, with or without a reasonable accommodation. "Essential functions" refers to the fundamental tasks of a job that must be performed as a defining element of the job. The term does not refer to marginal tasks that might only be performed from time to time.

These three definitions serve as an appropriate starting point in the process of making a determination as to whether an employee is covered under the ADA and whether an accommodation is appropriate. First, is the employee disabled? The EEOC provides a detailed guidance document to help employers determine whether an employee is actually "disabled" under the ADA's definition of the term. If the employee does not satisfy the requirement of having an actual disability that substantially limits a major life activity, the employer must then decide if he or she falls within the other two categories of either having a record of such a disability or being thought of as having such a disability. While a record of a disability can be readily shown through medical documentation, the final condition can be somewhat more ephemeral and difficult to establish through the introduction of documentary evidence. In the latter situation, an employer, present or prospective, should carefully review its treatment of the specific employee and similarly situated employees, and maintain a consistent policy toward the employee or class of employees with a particular affliction. The disparate treatment of similar employees (i.e., allowing one to work from home and prohibiting the other, all things being equal) would likely have the effect of restricting an employer from arguing that the essential functions of a job cannot be completed from home.

Once an employee is determined to be disabled (and therefore protected by the ADA), the investigation then turns to whether the employee is "qualified" within the meaning of 29 C.F.R. § 1630.2(m). In a recent decision, Mason v. Avaya Communications, Inc., the Tenth Circuit Court of Appeals restated a two-part test it uses to determine whether an employee is qualified. "First, the court determines whether the individual can perform the essential functions of the job.... Second, if (but only if) the court concludes that the individual is unable to perform the essential functions of the job, the court determines whether any reasonable accommodation by the employer would enable her to perform those functions." As such, an employee's job qualification becomes a function of his or her ability to perform the essential functions of the job. Determining which tasks are essential functions, then, often becomes the substantive and highly specific criteria in determining whether an employee, present or prospective, is eligible for protection under the ADA.

As the second part of the test reveals, due consideration must be given to potential reasonable accommodations that would enable an employee to perform the essential functions that he or she otherwise could not. The EEOC describes an employer's duty to provide a reasonable accommodation as "a fundamental statutory requirement because of the nature of discrimination faced by individuals with disabilities." Employers are required to actively engage in an ongoing interactive process with the disabled employee to find the most appropriate and mutually acceptable accommodation. The ADA's concept of reasonable accommodation includes modifications and adjustments to the job application process, work environment, job performance, and access to benefits and privileges. The Code of Federal Regulations offers "[j]ob restructuring" and "part-time or modified work schedules" as examples of possible reasonable accommodations.

An accommodation is only reasonable to the extent that it does not create an undue hardship for the employer. Such a hardship is deemed to be created when, as a result of an accommodation, an employer incurs "significant difficulty or expense." In many of the decisions involving telework as a reasonable accommodation, the issue of undue hardship is not addressed. An employer who is predisposed against a disabled employee working from home would likely invoke the essential functions test, arguing that working from home prohibits the employee from completing the essential functions of his or her job, making the employee not otherwise qualified. Although determinations of essential functions and undue hardship are both fact-specific inquiries, the former is more amenable to a pre-trial motion to dismiss than the latter. Therefore, a more in-depth jurisprudence has developed around the essential functions aspect of telework than the undue hardship elements.

Another area of uncertainty, insofar as undue hardship is concerned, is whether a determination of such hardship may be reached through a cost-benefit analysis. Although there is case history that might indicate the contrary, the EEOC specifically states that an undue hardship cannot be determined by a cost-benefit analysis. "Neither the statute nor the legislative history supports a cost-benefit analysis to determine whether a specific accommodation causes an undue hardship." An employer is instead encouraged to actively seek out and implement a reasonable accommodation, without considering it in terms of a return on investment. According to the EEOC, "undue hardship" is a term of proportionality with respect to the company, not the individual employee.

Courts have required that this determination be the result of an interactive process between employee and employer. The Ninth Circuit Court of Appeals described the process as follows: "Once an employer becomes aware of the need for accommodation, that employer has a mandatory obligation under the ADA to engage in an interactive process with the employee to identify and implement appropriate reasonable accommodations." Indeed, the informal interactive process is a hallmark of the ADA. The statute, EEOC, and courts presume that both parties will act in good faith to find an accommodation that satisfies both sides. Courts have also stated that the process to find a reasonable accommodation "is a continuing duty that is not exhausted by one effort."

Telework as a Reasonable Accommodation

With respect to telecommuting as a reasonable accommodation, the essential functions test often becomes the determinative element in establishing whether or not a work-at-home arrangement would be a reasonable accommodation under the ADA. In Mason, the court was careful to note that it will not second guess an employer's description of a job's essential functions when the description is "job-related, uniformly enforced, and consistent with business necessity." Considering the essential functions of Mason's service coordinator position, the court emphasized the importance of Avaya's assertion that physical presence, teamwork, and supervision were all essential functions of the job. Avaya introduced a "great" amount of evidence to that effect while Mason relied primarily on her personal experience on the job as well as on Avaya's written job descriptions, which made no mention of these functions, as evidence to the contrary. However, the court found that these functions could be assumed to be part of the job and that their omission from the job description was "entirely unremarkable." Mason's request to telecommute was therefore deemed unreasonable as a matter of law.

Although the federal circuits are in general agreement that no inherent right to telework exists, their holdings reflect subtle variations as to what conditions may compel an employer to consider telework as a reasonable accommodation under the ADA's federal mandate.

In Humphrey v. Memorial Hospitals Association, the Ninth Circuit Court of Appeals held that "[w]orking at home is a reasonable accommodation when the essential functions of the position can be performed at home and a work-at-home arrangement would not cause undue hardship for the employer." Like Mason, this case focused on identifying essential functions of a job and determining whether a work-at-home arrangement would satisfy those requirements. However, unlike Mason, the Ninth Circuit did not cast an employee's physical presence at work in such a fundamental light. Rather, it noted that "regular and predictable attendance is not per se an essential function of all jobs." While working as a medical transcriptionist for Memorial Hospitals Association (MHA), Humphrey suffered from obsessive compulsive disorder, which caused frequent absences and tardiness. Although MHA offered Humphrey a flexible start time, she continued to miss work. Because the first accommodation was not working, Humphrey requested that she be able to work from home. This request was denied due to her past attendance problems and she was eventually fired for missing too much work. The court found that this termination violated the ADA because it was based on disciplinary action that was the direct result of Humphrey's disability. The court noted that "MHA's rejection of Humphrey's work-at-home request and its failure to explore with Humphrey the possibility of other accommodations, once it was aware that the initial arrangement was not effective, constitutes a violation of its duty regarding the mandatory interactive process."

As these two cases illustrate, interpretation of the ADA's reasonable accommodation provision is a highly fact-sensitive inquiry, which does not easily lend itself to simple rules or tests. In most instances, it will involve a balancing of the nature of the work being performed, the work environment, the employee's work history, etc. Courts would likely never require that an employer allow its employees to work from home when other accommodations might be satisfactory. Both courts discussed above considered whether an employee is a "qualified individual with a disability" and, in doing so, reveal different attitudes and understandings of the status of telework as a reasonable accommodation. Other circuit courts across the country have considered the issue and have written varying opinions on the topic while generally steering clear of sweeping mandates and prohibitions. Thus, employers, in an effort to determine what exactly is required by the federal circuit court governing the instant employer-employee relationship, must review not only the generic EEOC guidelines but also the opinions, if any, of that circuit court.

One court, in considering the issue, spent significant time and effort in a close examination of the statutory language, thereby undertaking a more expansive inquiry into the "reasonableness" of telework. Cited in both the Mason and Humphrey decisions, the case involved a 35-year-old paraplegic state employee's request to work at home during periods when pressure ulcers (which were deemed to be part of the underlying disability) forced her to remain at home. Chief Judge Posner of the Seventh Circuit wrote what is by now a widely cited opinion in favor of the employer and against Vande Zande. However, subsequent circuit court rulings that cite Vande Zande seem to disregard a fundamental qualification of the opinion. C.J. Posner asserts that it would take a "very extraordinary case" for an employee-requested work-at-home arrangement to be considered a reasonable accommodation. The oft-cited paragraph from Vande Zande states that "[m]ost jobs in organizations public or private involve team work under supervision rather than solitary unsupervised work, and team work under supervision generally cannot be performed at home without a substantial reduction in the quality of the employee's performance." However, the very next sentence of the opinion, which is rarely, if ever, included in these citations states, "[t]his will no doubt change as communications technology advances, but is the situation today."

The two cases cited and relied upon in Vande Zande to support the proposition that working from home would take a "very extraordinary case," actually have nothing at all to do with working from home. The first case involved a disabled teacher, whose repeated absences drew complaints from colleagues who were forced to cover for her. The second case involved a postal worker who was fired for too many unscheduled absences. In contrast, the two cases from the D.C. Circuit cited in support of a requirement that employers "consider work at home," actually involved employees who requested to work at home. Using such incongruent cases to support his theory, Chief Judge Posner makes the leap from a general requirement that employees actually show up for work to the idea that working from home cannot be a reasonable accommodation except in the "extraordinary case."

Although support for his argument might seem somewhat lacking, C.J. Posner wisely qualified his conclusion with the expectation that developing technology would eventually make telecommuting reasonable where it once had been an undue hardship. Subsequent rulings have by and large ignored the state of technology when considering the reasonableness of a work-at-home arrangement. Vande Zande was argued in 1994 and decided in January 1995, when companies like CompuServe and AOL were just starting to provide internet access to large numbers of in-home users and Amazon.com began selling books online. Less than a year before Vande Zande was published, Vice President Al Gore first coined the phrase "information superhighway" in a speech outlining the administration's support of the fledgling Internet and its commitment to revolutionary growth in an information technology industry.

The state of technology at the outset of 2004, when Mason was decided, is vastly different from that of a decade ago. According to a report by the Employment Policy Foundation (EPF), "[i]n 1995, there were only 22 million Internet users in the United States. Today, that number may be as high as 135 million." The report goes on to list other developments such as the increased availability of high-speed Internet and the ever-increasing number of workers who have personal computers in their own homes. In addition to the EPF report, many other reports chronicling the expanding scope of telework in the marketplace have been published in recent years. However, an examination of Vande Zande's subsequent interpretation reveals that while the "information superhighway" has expanded throughout the social and economic heart of America, it seems to have stopped at many courthouse doors. In citing Vande Zande, the Mason court stopped short of acknowledging the current state of technology, choosing rather to portray Vande Zande as simply standing for the idea that one generally cannot work from home without a reduction in performance. The following cases show similar examples of how circuit courts have viewed Vande Zande in a technological vacuum, without regard to the current state of telecommuting opportunities.

The Seventh Circuit reaffirmed its holding in Vande Zande, minus the technology qualification, in Rauen v. United States Tobacco Manufacturing Limited Partnership. The Rauen court cited Vande Zande for the proposition that "a home office is rarely a reasonable accommodation." Rauen was a computer programmer who requested to work at home except when needed at the office. Generally, she would determine when and how often she would be needed in the office. She even specifically rejected an offer to work at home except for one day a week. In addition, Rauen had been successfully performing her job with no accommodation for roughly eight months between the time she first requested the accommodation and the time she filed a complaint with the EEOC. Based on the fact that she could perform her job with no accommodation and that she was not the "exceptional case" where telecommuting would be a reasonable accommodation, the court ruled against her, thereby reinforcing its holding in Vande Zande. Yet, while Rauen now re-states the seeming court bias favoring presence at the central workplace, a more accurate reading is that an employer is not obligated to provide a work-at-home accommodation when the essential functions of a job can be completed at the central workplace.

In Smith v. Ameritech, the Sixth Circuit considered the reasonableness of a disabled employee's two-part request, first, to be reassigned to a position that would enable him to work from home and, second, to be allowed to work from home. This case also raised the interesting question of whether a company that accommodates one disabled person in a particular manner is obliged to accommodate other disabled employees in a similar manner. Smith pointed to a fellow Ameritech employee who was allowed to work at home in support of his request to do the same. His proposal to be reassigned to that position (of which there were no vacancies at the time) and allowed to work from home was the subject of the dispute. Ruling in favor of the employer, the court upheld the well-established principle that "[t]he ADA does not require employers to create a new position for a disabled employee." Having already effectively ruled against Smith, the court then considered the legitimacy of a work-at-home arrangement and, citing Vande Zande, found that this was not "one of those exceptional cases" where he could have performed the essential functions of his job without a reduction in quality. It is not certain whether the court considered Smith's present job or his proposed new job in determining the reasonableness of a work-at-home arrangement. However, it is certain that due to the physical nature of Smith's current job, he was not able to perform its essential functions. Smith's argument, that the court consider another Ameritech employee working from home, became essentially moot when the court found that Ameritech was not required to reassign Smith to a non-vacant position.

The Fifth Circuit considered the issue in Hypes v. First Commerce Corporation, in which an employee suffering from chronic obstructive lung disease was fired for excessive tardiness and absence. Examining the essential functions of the job, the court found physical presence at the workplace essential and deemed Hypes not otherwise qualified due to his inability to show up consistently for work. The court cited Vande Zande to stress the reduction in quality of work performed at home versus work completed at the office. Other than the fact that Hypes had to review confidential documents, which could not be taken from the office, the court noted no specific task (other than teamwork, supervision, and physical presence) that prohibited Hypes from working at home. In considering the plausibility of a work-at-home arrangement, no mention was made of technological solutions that would enable Hypes to work from home.

Conspicuously absent from these decisions, as well as from Mason and Humphrey, is any mention of Vande Zande's qualification that technology will likely make working at home a viable accommodation. While it is not surprising that the Smith and Hypes opinions, which were written in 1997 and 1998 respectively, did not consider advances in technology, one cannot help but notice more recent courts' (such as Mason (2004) and Rauen (2003)) refusal to consider discernible advances in communications technology when considering the viability of a work-at-home arrangement. The authors do not intend to second guess all decisions holding telework to be unreasonable. In fact, the Eighth Circuit ruled against a plaintiff's request to work from home in Heaser v. The Toro Company, however not before stating that "[w]e assume, without deciding, that working from home may, in certain circumstances, be a reasonable accommodation." Notably, Heaser does not cite Vande Zande, nor does it include any presumption against telework, rather, it follows the case-by-case consideration mandated by the ADA, which the authors would argue is the appropriate means of review.

The facts behind the ruling in Vande Zande reveal that the court decided the case appropriately. The plaintiff was indeed pushing the limits of accommodation to extreme levels that went well beyond the bounds of reasonableness and justified refusal of a work-at-home accommodation. However, in writing what amounts almost to a treatise on the ADA's reasonable accommodation provision, Chief Judge Posner created a precedent that may go well beyond the ADA's requirement that accommodation determinations be made on case-by-case basis. His statement that "[a]n employer is not required to allow disabled workers to work at home, where their productivity inevitably would be greatly reduced" has had the effect of muddying the waters of ADA interpretation and application. In that sentence, "where" can be read to mean either "if" or "because." If read to mean the former, it would support a case-by-case analysis by prohibiting work at home if and when that arrangement would lead to a reduction in productivity. However, if read to mean the latter, the sentence takes on a cause-and-effect construction that renders it more a declaration that work at home will inevitably lead to a reduction in productivity. When read in context, the sentence appears assertive in nature as C.J. Posner creates a presumption that all but the "extraordinary case" will result in a reduction in productivity when working at home.

In the wake of Vande Zande, this predisposition against telework has been a recurrent theme among courts that take up the issue. As noted above, courts have often cited this section of the decision to rule out an accommodation of working from home, which essentially has the effect of enforcing a sweeping general rule instead of the mandated case-by-case consideration. When viewed alongside a case history that largely ignores the state of technology, the holding in Vande Zande is ripe for reconsideration. In a 2001 article on emerging legal issues relating to telecommuting, Dawn Swink revealed a similarly skeptical view of Vande Zande's presumption against telework: "Regardless of whether the Vande Zande presumption is based upon erroneous assumptions, the ADA specifically requires a case-by-case inquiry into reasonable accommodations; therefore any presumption against telecommuting as a reasonable accommodation appears to be contrary to the spirit of the law."

Conclusion

The brief case law examining telework as a reasonable accommodation under the ADA reveals a general reluctance among the courts to interfere with employers' determinations as to whether a particular accommodation is or is not reasonable. In Mason, the Tenth Circuit reiterated a position that "under the ADA, we do not sit as a super personnel department that second guesses employers [sic] business judgments." On the one hand, courts are wise to avoid overreaching into the marketplace. Surely it would create a climate of uncertainty among employers if more of their decisions became subject to judicial review. It could also have the unwanted effect of straining an already overburdened legal system with more employees turning to the courts to reverse an employer's decision. On the other hand, it must be remembered that a fundamental role of the ADA as expressed in its Purpose is "to invoke the sweep of congressional authority… to regulate commerce, in order to address the major areas of discrimination faced day-to-day by people with disabilities." Thus, the Congress has determined that the government must regulate, and to some extent "second guess," employers in order to achieve the larger societal goal of ending discrimination of disabled workers.

It is this presumption in favor of the disabled employee that runs the risk of being drowned out amid a national chorus of jurisprudence reluctant to infringe on the commerce it is explicitly charged with regulating. The ADA's legislative history reveals the vital role of reasonable accommodations within the Act. "[T]estimony indicates that the provision of various types of reasonable accommodations for individuals with various types of disabilities is essential to accomplishing the critical goal of this legislation-to allow individuals with disabilities to be part of the economic mainstream of our society." With such explicit congressional mandates, it is difficult to identify the appropriate balance between the goal of putting disabled people to work and the law's provision that "consideration shall be given to the employer's judgment as to what functions of a job are essential." However, as Evan Kemp, then-Commissioner of the EEOC, candidly explained, many disputes over what is a "reasonable accommodation" can be traced to an employer's predisposition toward disabled employees. "[I]f [an employer] wants disabled people, the accommodations really don't become a burden. If they don't, they always do." Unfortunately, these predispositions are validated by a ruling such as Vande Zande, which is essentially a codification of a presumption as to the burdensome nature of allowing a disabled person to work at home.

The balance seems to have tipped in favor of upholding employers' determinations and against the strong intent of the Congress to help disabled people enter and remain in the workforce. One way to potentially level the playing field is to re-evaluate the importance of such "essential functions" as physical presence, teamwork, and supervision. To one extent or another, these three factors could be thought of as essential to every job and stand as bars to a disabled worker's ability to telecommute. In this day and age, it might be more appropriate to view physical presence as taking a backseat to virtual presence; teamwork can be achieved online or through numerous teleconferencing options that continue to become more and more affordable; and the need for supervision can be objectively determined by measuring the quality and quantity of the work product.

That said, it must be noted that telework is not for everyone. Certain employees, disabled or otherwise, will not be successful candidates for a work-at-home arrangement due to lack of motivation, discipline, ability, etc. Likewise, certain jobs simply cannot be completed from anywhere but the workplace. Obviously, someone who works on an assembly line cannot complete the essential functions of his or her job from anywhere but the assembly line. However, as the U.S. economy moves steadily away from manufacturing in the direction of an information-based marketplace, and technology evolves by leaps and bounds, Chief Judge Posner's prescient observation that the impracticality of telework "will no doubt change as communications technology advances" seems poised to come to fruition.

Under the ADA, it is the responsibility of an employer to act in good faith in determining a reasonable accommodation that will allow a disabled employee to work. Therefore, it is essential that employers genuinely consider all accommodations proposed by a disabled employee, even if that would mean allowing an employee to work from home when alternative accommodations might not seem reasonable. This could easily be done on a trial basis at first to see if it is, in fact, a reasonable accommodation or if it will become an undue hardship. However, as technology makes working at home more objectively reasonable, which is evidenced by the ever-expanding teleworkforce, employers will have less justification for an out-of-hand dismissal of telework as an unreasonable accommodation.

Employers in general, and human resource managers in particular, therefore, need to understand that there actually is a relatively simple framework within which work-at-home decisions can be made in accordance with the ADA's reasonable accommodations provision. First, is the employee disabled? If so, is the employee otherwise qualified? In determining what makes an employee "otherwise qualified," an employer must identify the essential functions of the job and determine whether the disabled employee can perform those functions with or without a reasonable accommodation. This "essential functions" aspect of the determination process is arguably the most subjective. Consequently, employers should exercise care in accurately identifying the essential functions of a job without allowing pre-conceived notions of the efficacy of telework to interfere with the specific determination process. Once the essential functions are identified and it is determined that an accommodation is necessary, employers must actively interact with the employee to find a workable solution. Accommodations suggested by the employee, therefore, must be given due consideration, including working from home when appropriate. Human resources personnel should remember that the "undue hardship" provision is not a "way out" of providing a reasonable accommodation; rather, it provides a safe harbor from the perils of unlimited expense and undue burden. Evidence that an employer focused on the hardships before, or in place of, actively considering an accommodation in good faith, could lead to a determination that the employer was not engaging in the interactive process as required by the ADA. It is also important to remember, that an employee only need make a prima facie showing that the employer did not live up to its ADA obligations to force the employer into potentially lengthy and costly litigation.

As technology continues its feverish advance, courts should be less likely to view home-based work activities as either inherently inefficient or incapable of satisfying the essential functions of a particular job. Employers should be prepared not only to understand the current state of federal law, but also where that law may be headed in the near future in light of technological advances and a greater acceptance of telecommuting by the marketplace as a whole. While the Vande Zande presumption against the reasonableness of telework continues to be cited in current case law, its position of importance in the opinions has generally moved from direct precedent to anecdotal reference. As a result, it is reasonable to conclude that the "extraordinary case" and "inherently inefficient" rationales of the past ten years will give way to what the ADA requires, namely, a case-by-case determination of which accommodations, including working at home, may be reasonable.

International Telework Association & Council Press Release, Home-based Telework by U.S. Employees Grows Nearly 40% since 2001 (Sept. 4, 2003), available at http://www.telecommute.org/news/pr090403.htm (The survey reveals that in 1997, there were 11.6 million employed teleworkers; in 1999, there were 14.4 million employed teleworkers; in 2001, there were 16.8 million employed teleworkers; and in 2003, there were 23.5 million employed teleworkers. The survey distinguishes between employed and self-employed workers. The data just mentioned reflects the former).

U.S. Office of Personnel Management, Telework: A Management Priority - A Guide for Managers, Supervisors, and Telework Coordinators (May 2003), available at http://www.telework.gov/documents/tw_man03/prnt/manual.asp. Other state and federal politicians have actively endorsed telework as a means to increase efficiency through employee retention as well as for its environmental benefits of reduced congestion and pollution. Some examples include: "Colorado Congressman Mark Udall introduces Small Business Telecommuting Act in the House of Representatives to raise awareness about telecommuting among small business employers and encouraging them to offer telecommuting options;" "Virginia Governor James Gilmore Seeks to offer $10 million in tax incentives and grants for companies that let their employees telework rather than contributing to rush hour traffic;" and "Senator Rick Santorum (R-PA) In May, 2000 Santorum introduces the Telework Tax Incentive Act, which will provide a $500 tax credit for every worker who telecommutes." These and other examples of politicians in favor of telecommuting can be found at www.sohojobs.org/politicians.html (last visited May 13, 2004).

White House Domestic Policy Council, New Freedom Initiative: A Progress Report (March 2004), available at http://www.whitehouse.gov/infocus/newfreedom/newfreedom-report-2004.pdf (The tax incentive has not yet been passed, however the President continues to support this proposal in his FY 2005 budget.)

Id. (This part of the initiative has been accomplished already. The administration has also published guidance documents and promotional materials relating to telework. It has also begun a two-year study to evaluate current telework arrangements).

42 U.S.C. §§ 12101, et. seq (2000). It is important to note that the ADA applies to all employers with 15 or more employees.

42 U.S.C.A. § 12112(a) (West 2004).

42 U.S.C.A. § 12112(b)(5)(A) (Although the ADA applies to both current employees and job applicants, an anecdotal review of the case law examined in preparation of this article revealed very little, if any, cases pertaining to applicants. This suggests the difficulty still faced by disabled people trying to gain a foothold in the marketplace and reinforces the need for the protections granted by the ADA).

29 C.F.R. § 1630.2(i) (2004) ("Major life activities means functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.").

29 C.F.R. § 1630.2(g).

29 C.F.R. § 1630.2(m).

29 C.F.R. § 1630.2(n)(1). The following factors are considerations in any determination of whether a specific task qualifies as an essential function: "(i) The function may be essential because the reason the position exists is to perform that function; (ii) The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed; and/or (iii) The function may be highly specialized so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function" 29 C.F.R. § 1630.2(n)(2). Evidence as to the essential nature of a particular job function includes: "(i) The employer's judgment as to which functions are essential; (ii) Written job descriptions prepared before advertising or interviewing applicants for the job; (iii) The amount of time spent on the job performing the function; (iv) The consequences of not requiring the incumbent to perform the function; (v) The terms of a collective bargaining agreement; (vi) The work experience of past incumbents in the job; and/or (vii) The current work experience of incumbents in similar jobs" 29 C.F.R. § 1630.2(n)(3).

Equal Employment Opportunity Commission, Section 902 Definition of the Term Disability (last modified February 1, 2000), available at http://www.eeoc.gov/policy/docs/902cm.html). This definition can also be found in 29 C.F.R. § 1630.2(g). It includes: "(1) A physical or mental impairment that substantially limits one or more of the major life activities of such individual (2) a record of such an impairment or (3) being regarded as having such an impairment. It should also be noted that the definition of "disability" was altered somewhat after the U.S. Supreme Court issued decisions in Sutton v. United Air Lines. Inc., 527 U.S. 471, 480 (1999) and Murphy v. United Parcel Service, Inc., 527 U.S. 516, 521 (1999). In those cases, the Supreme Court held that corrective and/or mitigating measures should be taken into consideration in determining whether an employee is disabled. Prior to these decisions, disabilities were considered in their natural, or uncorrected, state.

Mason v. Avaya Communications, Inc., 357 F.3d 1114 at 1118 (10th Cir. 2004) (alteration in original).

Equal Employment Opportunity Commission, Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (last modified October 22, 2002), available at http://www.eeoc.gov/policy/docs/accommodation.html (emphasis added).

The EEOC provides an example of how this process would work with respect to working at home in paragraph 3 of its guidance document Work at Home/Telework as a Reasonable Accommodation (last modified February 3, 2003), available at www.eeoc.gov/facts/telework.html

29 C.F.R. § 1630.2(o)(1).

29 C.F.R. § 1630.2(o)(2) ("Reasonable accommodation may include but is not limited to: (i) Making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and (ii) Job restructuring; part-time or modified work schedules; reassignment to a vacant position; acquisition or modifications of equipment or devices; appropriate adjustment or modifications of examinations, training materials, or policies; the provision of qualified readers or interpreters; and other similar accommodations for individuals with disabilities").

29 C.F.R. § 1630.2(p)(1). The regulations list factors to be considered in determining whether an accommodation creates an undue hardship. Such factors include: "(i) The nature and net cost of the accommodation needed under this part, taking into consideration the availability of tax credits and deductions, and/or outside funding; (ii) The overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation, the number of persons employed at such facility, and the effect on expenses and resources; (iii) The overall financial resources of the covered entity, the overall size of the business of the covered entity with respect to the number of its employees, and the number, type and location of its facilities; (iv) The type of operation or operations of the covered entity, including the composition, structure and functions of the workforce of such entity, and the geographic separateness and administrative or fiscal relationship of the facility or facilities in question to the covered entity; and (v) The impact of the accommodation upon the operation of the facility, including the impact on the ability of other employees to perform their duties and the impact on the facility's ability to conduct business" 29 C.F.R. § 1630.2(p)(2).

While both provisions require the pleading of specific facts, the nature, source, and accessibility of "essential functions" factors (see footnote 11) are more readily in the employer's immediate knowledge and control than are the "undue hardship" factors (see footnote 18).

See Mason, 357 F.3d 1114 at 1122, "the question of whether an employee can perform the essential functions of her job is a mixed question of law and fact. Assuming a jury may determine the essential functions of a job, we conclude [employee's] case is not one in which the essential function inquiry must go to the jury because no reasonable jury could find for [employee] applying the factors set forth by 29 C.F.R. § 1630.2" (emphasis in original; internal citation omitted) see also Hypes v. First Commerce Corporation, 134 F.3d 721 at 726 (5th Cir. 1998) which states that, "it was an essential function of his job, as a member of a team, that Hypes be in the office, regularly, as near to normal business hours as possible, and that he work a full schedule… The evidence demonstrates that this was not the sort of job which could be done at home;" see also Rauen v. United States Tobacco Manufacturing Limited Partnership, 319 F.3d 891 at 897 (7th Cir. 2003) which states, "[employee's] situation does not present the type of "very extraordinary case" where a home office would be reasonable. The central components of [employee's] job require her to be at the office." These cases were all decided on an employer's motion for summary judgment. But see Hernandez v. City of Hartford, 959 F.Supp 125 at 132 (D.Conn 1997) (in which the court denied a motion for summary judgment due to legitimate factual disputes over whether face-to-face contacts were essential functions. Only then did the court consider whether a proposed work-at-home arrangement would present an undue burden. Rejecting the Vande Zande presumption that telecommuting is inherently inefficient (discussed below), the court also found factual issues in dispute and thus denied the employer's motion for summary judgment).

Vande Zande v. State of Wisconsin Department of Administration, 44 F.3d 538 at 543 (7th Cir. 1995). "The employee must show that the accommodation is reasonable in the sense both of efficacious and of proportional to costs. Even if this prima facie showing is made, the employer has an opportunity to prove that upon more careful consideration the costs are excessive in relation either to the benefits of the accommodation or to the employer's financial survival or health". See also Monette v. Electronic Data Sys. Corp., 90 F.3d 1173 at 1184. One might reasonably question the application of a cost-benefit analysis in any event due to the difficulty of identifying and accurately assessing the factors that must be considered in such an analysis, specifically, potential employer capital cost/savings, possible state and federal tax incentives/benefits in hiring a disabled person and in encouraging telecommuting, possible greater efficiencies generated by at home work, and unemployment, workers, and disability compensation cost reduction. This analysis does not even consider the less concrete savings and benefits to the community at large through decreased demand on transportation infrastructure and a corresponding, albeit minimal, reduction in pollution.

See Equal Employment Opportunity Commission, supra note 14.

Id. "Whether the cost of a reasonable accommodation imposes an undue hardship depends on the employer's resources, not on the individual's salary, position, or status (e.g., full-time versus part-time, salary versus hourly wage, permanent versus temporary". See Vande, 44 F.3d 538 at 543, "the function of the 'undue hardship' safe harbor, like the 'failing company' defense to antitrust liability, is to excuse compliance by a firm that is financially distressed, even though the cost of the accommodation to the firm might be less than the benefit to disabled employees." (internal citations omitted). This apparent discrepancy in different interpretations of "undue hardship" reveals that it is a concept best avoided, if possible, in favor of a discussion of the essential elements test.

Humphrey v. Memorial Hospitals Ass'n, 239 F.3d 1128 at 1137 (9th Cir. 2001). Explains that the interactive process must be conducted in good faith, without obstruction or delay, and in an ongoing fashion until a satisfactory accommodation is found).

See Mason, 357 F.3d 1114 at 1138 (internal citations and punctuation omitted).

Id. at 1119.

Id. at 1117 (The service coordinator position required Mason to "monitor the current days queue of repair tickets and assign them through the computer system to a technician in the field").

Id. at 1120 ("Specifically, Avaya presented evidence that (1) it considers attendance at the administration center, supervision, and teamwork as essential functions of the service coordinator position, (2) all of its service coordinators work their entire shift at the administration centers, (3) it has never permitted a service coordinator to work anywhere other than an administration center, and (4) service coordinators cannot be adequately trained or supervised if they are not at the administration center").

Id. at 1122.

See Humphrey, 239 F.3d 1137 at 1138 (citing EEOC Guidance Document: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act) (see supra note 14).

Id. at 1135.

Id. at 1132 (MHA had a policy of allowing medical transcriptionists to work from home provided they were not involved in any disciplinary action. Although Humphrey was written up for excessive absences and tardiness, it is agreed that she was otherwise a model employee who was honest, cordial, and completed her assignments quickly and accurately).

Id. at 1139.

Vande Zande v. State of Wisconsin Department of Administration, 44 F.3d 538 (7th Cir. 1995).

Chief Judge Posner was joined in this opinion by Judge Engel, visiting from the Sixth Circuit, and Judge Easterbrook.

SeeVande Zande 44 F.3d 538 at 545 (see also Humphrey at 1137, Rauen v. United States Tobacco Manufacturing Limited Partnership, 319 F.3d 891 at 896 (7th Cir. 2003)).

Id. at 544 (see also Mason at 1120, Hypes v. First Commerce Corporation, 134 F.3d 721 at 727 (5th Cir. 1998), Smith v. Ameritech, 129 F.3d 857 at 867 (6th Cir. 1997)).

Id. (It should be noted that the merits of this case strongly point to a ruling in favor of the employer. Both sides agree that the employer provided Vande Zande with numerous accommodations to allow her to continue working. In fact, the employer permitted her to complete 15 to 20 hours of work from home each week she was absent during a bout of pressure ulcers. Vande Zande argues that the remaining time (a total of 16.5 hours) should not be taken from her sick leave or that her employer should have provided her with a desktop computer at home. However, the court (as indicated in the text above) did not agree and ruled that the employer's accommodations were reasonable. She also argued that a kitchen sink on her floor should be lowered two inches to accommodate her. However the court found that a bathroom sink at the requested height on the same floor adequately accommodated her.)

Tyndall v. National Education Centers, Inc. of California, 31 F.3d 209 at 213 (4th Cir. 1994) (holding "except in the unusual case where an employee can effectively perform all work-related duties at home, an employee who does not come to work cannot perform any of his job functions, essential or otherwise" (internal citations and emphasis omitted). The employee in this case never requested to work from home, nor was the issue ever discussed in the decision.

Law v. United States Postal Service, 852 F.2d 1278 at 1280 (Fed. Cir. 1988) (holding "an agency is inherently entitled to require an employee to be present during scheduled work times." Similar to Tyndall, working from home was never raised as an issue in this case. In addition, this case took place before the passage of the Americans with Disabilities Act.)

Carr v. Reno, 23 F.3d 525 at 530 (D.C. Cir. 1994) (holding that the law "requires an agency to consider work at home… as [one of the] potential forms of accommodation") and Langon v. Dept. of Health & Human Services, 959 F.2d 1053 (D.C. Cir. 1992) (reversing a grant of summary judgment due to disputed material facts as to whether an employee's requested accommodation of working from home was adequately considered. The decision essentially requires government agencies to consider in good faith a request to work from home). Both of these cases were decided under the Rehabilitation Act of 1973 (29 U.S.C. §§ 790-794 (d)) which predated the ADA but used much of the same statutory language. The main difference between the two acts is that the Rehabilitation Act applied only to government agencies and their employees.

Kristen M. Ludgate, Telecommuting and the Americans with Disabilities Act: Is Working at Home a Reasonable Accommodation, 81 Minn. L. Rev. 1309 (1997)(in which the author argues that courts should abandon the Vande Zande "presumption analysis" that assumes telecommuting to be inefficient. It is interesting to note that the author discusses the trend toward telecommuting in 1997. In 2004, that trend continues to advance by leaps and bounds, while courts remain slow to fully consider the impact of these emerging technologies).

Vice President Al Gore, Speech before the Television Academy, Los Angeles, California (January 11, 1994).

Employment Policy Foundation, The Balancing Act: Telework: Part of the Work-Life Balance Equation (March 11, 2004), available at www.epf.org/pubs/newsletters/2004/ba20040311.pdf.

North Carolina Office of State Personnel, State of North Carolina Teleworking Pilot Program: Human Resources Development Division (last visited May 14, 2004), available at http://teleworking.osp.state.nc.us/report/final.pdf (which not only recommends that the state "should proceed with implementing a statewide teleworking program," but also reports a 15% increase in average worker productivity); Michael Bookey, Christopher Coward, and Paul Summers, Kitsap Telework Analysis: Assessing the Costs and Benefits of Telework for Kitsap Commuters, Puget Sound Employers, and the Public (July 2003), available at www.kpud.org/telecom/powerpoint/kitsaptelework.pdf (This study looks at teleworking opportunities for residents of the unique geographical area of Kitsap County, on the western shore of Puget Sound, many of whom cross the Sound to work in Tacoma, Seattle, and other places on the eastern shore. The report looks at the high commuting costs involved in commuting across the Sound and identifies telework as "an especially potent economic development strategy for Kitsap County"); Jack M. Nilles, JALA International, Inc., Telework America 2000 Research: Key Findings (October 2000), available at www.workingfromanywhere.org/pdf/ITACTeleworkAmerica2000KeyFindings.pdf (finding that "[t]he self-reported productivity improvement of home-based teleworkers averages 15 percent."); L.A. Lorek, Telecommuting Saves Businesses, Agencies Millions, San Antonio Express, October 28, 2002, available at http://www.fortwayne.com/mld/newssentinel/4386078.htm (reporting that "[a]bout 25 percent of IBM's 320,000 workers worldwide telecommute from home offices, saving $700 million in real estate costs").

See Mason, 357 F.3d 1114 at 1120. Although it is not the intention of the authors to question the outcome of Mason, it is worth pointing out that this selective citation might lead the Mason decision to be seen as having been made in a vacuum, without regard for the changing reality of modern telecommunications. After all, the defendant is Avaya Communications, Inc., a self-avowed global leader in the telecommunications industry.

It must be remembered that the authors do not necessarily dispute the ultimate results of these and the following cases. Rather it is the presumed prejudice toward working at home that is being questioned. Although telecommuting would not be reasonable for workers in many different fields, consideration of its workability should be more thoroughly examined before ruling it out as a possible accommodation.

Rauen v. United States Tobacco Manufacturing Limited Partnership, 319 F.3d 891 (7th Cir. 2003).

Id. at 896.

Id. at 894.

Smith v. Ameritech, 129 F.3d 857 (6th Cir. 1997).

Id. at 867 (citing School Bd. of Nassau County v. Arline, 480 U.S. 273 (1987), which interpreted the Federal Rehabilitation Act to say that "[a]lthough [employers] are not required to find another job for an employee who is not qualified for the job he or she was doing, they cannot deny an employee alternative employment opportunities reasonably available under the employer's existing policies" Id. at 289 n. 19).

See Smith, 129 F.3d 857at 865.

Though it is uncertain for which job the court considered Smith's request, it could be assumed that it was his present position. The court had just ruled that it was not reasonable for Smith to be reassigned to a new position with no vacancies. With that option removed from the table, the court would have no reason to consider a work-at-home arrangement for that position.

See Smith, 129 F.3d 857 at 868 (The court did discuss the subject and that "provision of a certain accommodation to one disabled employee does not automatically entitle [another employee] to the same accommodation").

Hypes v. First Commerce Corporation, 134 F.3d 721 (5th Cir. 1998).

Id. at 726-727 ("An employer is not required to allow disabled workers to work at home, where their productivity inevitably would be greatly reduced" Vande Zande, 44 F.3d at 544).

Heaser v. The Toro Company, 247 F.3d 826 at 831 (8th Cir. 2001) (in which a marketing service coordinator who suffered from serious allergies and multiple chemical sensitivities asked to work at home. The court found that accommodating Heaser's request would have required the company to discontinue its use of carbonless paper order forms, which aggravated Heaser's condition, and computerize its order system. The court found this "overall change" to company operations too great to be considered reasonable) See also Morrissey v. General Mills, Inc., 37 Fed.Appx. 842 (8th Cir. 2002) (an unpublished case in which the Eight Circuit similarly avoided any presumptions about the efficiency of telework and undertook a fact-specific analysis in determining that working from home in this case would not be reasonable).

As noted earlier, Chief Judge Posner's support of a cost-benefit analysis to determine the reasonableness of an accommodation goes against the current expressed guidance of the EEOC. Similarly, while the bulk of case history advocates strongly in favor of a case-by-case analysis to determine the reasonableness of an accommodation, C.J. Posner seems to state certain conceptions of the law as truth, without necessarily providing explicit foundations for his assertions.

See Vande Zande, 44 F.3d 538 at 545 but see Note 42 infra.

See for example Cruz v. Perry, 2003 WL 1719995 (N.D.Ill. 2003) (citing Vande Zande, 44 F.3d 538 at 544-545) wherein the court discussed the idea of presence at the workplace as an essential function of the job by citing multiple Seventh Circuit decisions holding that "attendance at the job site is a basic requirement of most jobs" (citing Waggoner v. Olin Corp., 169 F.3d 481, 484 (7th Cir. 1999), Collins v. NTN-Bower Corp., 272 F.3d 1006, 1007 (7th Cir. 2001), E.E.O.C. v. Yellow Freight Sys., Inc., 253 F.3d 943, 950 (7th Cir. 2001) (en banc), Corder v. Lucent Tech, 162 F.2d 924, 928 (7th Cir. 1998), Nowak v. St. Rita High Sch., 142 F.3d 999, 1003 (7th Cir. 1998)) at *4. It then repeated the Vande Zande presumption against telework. In the midst of this discussion, though, the court states the following: "Whether a requested accommodation is reasonable is a highly fact-specific inquiry and requires balancing the needs of the parties. Rauen, 319 F.3d at 896." Id. Nonetheless, the court placed greater emphasis on the Vande Zande presumption than on the stated factual analysis.

Dawn R. Swink, Telecommuter Law: A New Frontier in Legal Liability, 38 Am. Bus. L.J. 857, 898 (2001).

See Mason, 357 F.3d 1114 at 1122 (internal punctuation and citations omitted).

42 U.S.C. § 12101(b)(4) (emphasis added).

42 U.S.C. § 12101(a) (in which the Congress lists its findings with respect to the state and status of disabled Americans as a preamble to its purpose in enacting the statute. Among the findings are the following: "discrimination against individuals with disabilities continue[s] to be a serious and pervasive social problem," "individuals who have experienced discrimination on the basis of disability have often had no legal recourse to redress such discrimination," and "the continuing existence of unfair and unnecessary discrimination and prejudice costs the United States billions of dollars in unnecessary expenses resulting from dependency and non-productivity.")

H.R. Rep. No. 101-485(II), at 34 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 316.

42 U.S.C. § 12111(8) (2000).

Id. 1990 U.S.C.C.A.N. at 315-316.

See Mason, 357 F.3d 1114, 1122 and Vande Zande, 44 F.3d 538, 544. See also Audrey E. Smith, The "Presence is an Essential Function" Myth: The ADA's Trapdoor for Chronically Ill, 19 Seattle U. L. Rev. 163 (1995).

Vande Zande, 44 F.3d at 544.

[71] U.S. Airways, Inc. v. Barnett, 535 U.S. 391 at 401 (2002) (holding that "a plaintiff/employee (to defeat a defendant/employer's motion for summary judgment) need only show that an "accommodation" seems reasonable on its face, i.e., ordinarily or in the run of cases").

Michael A. Valenza is an Assistant Professor at The Fox School of Business and Management, Temple University.