MCLE Self-Study Article Telecommuting as a Reasonable Accommodation

By Katie Patterson

When an employee experiences a disability, navigating the legal requirements of the Americans with Disabilities Act (ADA) and the California Fair Employment and Housing Act (FEHA) can be difficult, to say the least. This article focuses on providing a reasonable accommodation to a disabled employee; but keep in mind an employer may have other obligations, such as granting leave under the Family Medical Leave Act.

As a foundational matter, not every physical malady is a “disability”; generally the impairment must substantially limit one or more major life activities. If an employee has a disability, that employee may be entitled to a reasonable accommodation meaning it enables that employee to perform the “essential functions” of the position. To determine if a function is “essential,” courts look to the employer’s written job description, the business judgment of the employer, the amount of time spent performing that function, and the actual requirements of the position, particularly if those requirements conflict with the written job description. How do the employee and employer determine what “reasonable accommodation” to provide? The parties are required to engage in “the interactive process” to determine whether a reasonable accommodation is appropriate and what accommodation to implement. The interactive process is designed to be just that – interactive. Both sides are required to engage with the other side to come up with a workable solution. If one possible solution fails, the parties should continue to have a dialogue until either an accommodation is implemented or it is clear that no accommodation will allow the employee to perform the essential functions of the position.

Telecommuting