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Yahoo! Decision to Ban Telecommuting Contains ADA Exception

    Client Alerts
  • March 08, 2013

Yahoo! garnered unwelcomed recent publicity over its decision to reverse its policy on employees working from home. The company justified the change based on the need for collaborative work among groups of employees tasked with innovation in a rapidly changing technological marketplace. Critics of the decision questioned the effectiveness of the new policy, and criticized its impact on mothers and others who work at least partially from home.

Most of this analysis did not address legal issues that arise from telecommuting policies. In general, employers have the right to allow or disallow employees working from home. For example, employers are not required to accommodate employees' childcare needs or preferences by agreeing to allow telecommuting.

The main exception to this rule involves disabled workers. In some circumstances, telecommuting can be a required accommodation under the Americans with Disabilities Act. If a medical condition or course of medical treatment preclude an employee from commuting or working in an office environment, working from home may be an effective temporary or even permanent accommodation.

An employer faced with a telecommuting request from a disabled applicant or employee should conduct the regular interactive process to consider the proposal. First, the employer should determine if telecommuting is an effective accommodation. Can the work be performed remotely? Some jobs obviously require the employee's presence at the worksite. Do factors such as the need to work in collaboration with colleagues make telecommuting an ineffective substitute? Second, the employer should determine whether the telecommuting request presents any undue hardship, such as the cost of providing remote electronic access. If telecommuting is allowed, employers can enforce reasonable requirements for efficiency, security, safety and productivity.

Federal courts have sent mixed signals on the requirement to allow employees to work from home. Recent cases appear to be trending toward more open consideration of this alternative. The Yahoo! policy change recognizes the continuing obligation to consider telecommuting as an ADA accommodation. Employers considering similar changes should make certain that their policies contain similar exceptions.