Policy Banning Work from Home May Not Defeat a Disabled Employee’s Request for a Reasonable Accommodation

By Andrew M. Moskowitz, Esq.
amoskowitz@pashmanstein.com

As has been widely reported, at the end of February 2013, Yahoo! issued a memorandum in which it “ask[ed] all employees with work-from-home arrangements to work in Yahoo! offices.”  In the memorandum, Yahoo! noted that “being a Yahoo isn’t just about your day-to-day job, it is about the interactions and experiences that are only possible in our offices.”

What will happen if Yahoo! applies this policy across-the-board with no exceptions for individuals with disabilities?

Both New Jersey and New York law provide that unless employers can demonstrate an undue hardship on the operation of their businesses they are required to provide disabled individuals with a reasonable accommodation.  The Americans with Disabilities Act (ADA) imposes a similar obligation.  In defining the term reasonable accommodation, both the Code of Federal Regulations and the New Jersey Administrative Code refer to job restructuring, part-time or modified work schedules.  Similarly, the New York Code of Rules and Regulations lists as examples of a reasonable accommodation job restructuring; modified work schedules; and adjustments to an employee’s work schedule.

Some courts have questioned whether being in the office full-time is an essential function of the job.  For example, in one case in which an employee who experienced pre-term labor and other complications resulting from her pregnancy sought to work from home part-time, the court found that whether the proposed accommodation would have imposed an undue burden on the employer was a question of fact for the jury.

In contrast, where an employer can demonstrate that an employee’s presence at the office is an essential requirement of the position, it will not be required to permit the disabled employee to work from home.  For example, in one case, the plaintiff was a clerk for a trucking company who had sought to work in the office four hours per day and work the remainder of the time from home.   Her duties included meeting with the drivers weekly to review their daily driving logs; training the drivers in the proper completion of these logs; reviewing the logs to detect falsification, entering the logs into a computer and other administrative duties.

The Court found that the Plaintiff’s position required her presence at the office to perform virtually all of the essential functions of her job.  It therefore determined that her request for a modified work schedule in which she worked at home part-time was unreasonable and would impose an undue hardship on her employer.

The lessons employers may draw from the above examples is, first, a policy such as that implemented by Yahoo! must make accommodations for individuals with disabilities.  Clearly, an employer’s desire that its employees have “interactions and experiences that are only possible” at the office would not, standing alone, defeat a disabled employee’s request for a temporary job restructuring.  In addition, if employers believe that an employee’s daily presence at the office is an essential function of the position, they should prepare accurate job descriptions which document this requirement.

UPCOMING SEMINAR:
Providing Accommodations to Employees with Disabilities
MAY 17, 2013 // 7:30 – 9:00 a.m.

Yahoo! recently mandated that all employees with “work-from-home arrangements” discontinue these practices and work in Yahoo! offices.  Can an employer enforce such a policy across-the-board with no exceptions for individuals with disabilities?    The Americans with Disabilities Act of 1990, the New Jersey Law Against Discrimination and the New York State and New York City Human Rights Laws all require employers to provide a reasonable accommodation to employees with disabilities.  Accordingly, a policy such as that implemented by Yahoo! must make accommodations for individuals with disabilities.

This seminar will examine various hypotheticals with a focus on leaves of absence; requests to work at home; and modified work schedules.  It will also discuss the importance of employers drafting accurate job descriptions which describe the essential functions of each position.

Pashman Stein Offices: Court Plaza South, 21 Main Street, Suite 100, Hackensack, New Jersey 07601

To RSVP, please email RSVP@pashmanstein.com by no later than May 10. There is no fee to attend but registration is mandatory.

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