The subject of telecommuting is a sensitive one.

Progressive companies often use flexible schedules and remote work as a way to attract top talent, to increase staff morale, and to improve their reputation as an employer. However, Jessica Lingo of Frost Brown Todd LLC, reported on the recent decision by Yahoo! human resources chief to retract the company’s telecommuting option. In a memo dated February 22, 2013, the HR chief, Jackie Reses, cited sub-optimal speed and quality as the reason for the retraction.

The decision caused controversy because such a policy could violate the Americans with Disabilities Act (ADA). Telecommuting can serve as an accommodation for employees with disabilities that prevent them from attending the office and if the employer is not caused undue hardship.

In the case EEOC v. Ford Motor Company, Jane Harris, a Ford employee suffered from irritable bowel syndrome. In 2012, the Equal Employment and Opportunity Commission sued Ford for failing to accommodate her by allowing her to work from home. Ford claimed that her job required her to be present with customers. Harris was later fired. Ford said it was due to her performance, but Harris claims that her request to telecommute brought on the dismissal. Adam Vacarro of suggests that, although this is an ADA-related suit, the rule could set a precedent for other non-ADA cases. To avoid lawsuits with respect to telecommuting, employers are advised to do the following:

  • Develop a detailed job description for positions that list the “essential” functions. These functions may preclude an employee if they are unable to work at the office.
  • Have written policies that are available to safe concerning regular attendance. Be aware that any employee who is allowed to telecommute could undermine any policies that require regular attendance.
  • Listen to the employee and document any requests to show that you are willing to consider accommodating an employee’s need for telecommuting. Ensure that you understand if an accommodation is because of a disability because this is a key factor.

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