Flexible Work Arrangements a Front-line ADA Accommodation

Published in Law Week Colorado June 29, 2015 – Over ninety percent of American employers now offer flexible work arrangements (FWAs) to employees. Technological advances, diversity and inclusion initiatives, Millennials’ and Baby Boomers’ aspirations for flexibility and worklife fit, and other trends are influencing when and where we work.

FWAs are now widely recognized as a reasonable accommodation under the Americans with Disabilities Act (ADA), which defines “reasonable accommodations” to include “job restructuring, part-time or modified work schedules.” Further, cases involving FWAs are increasingly surviving summary judgment, making them extremely expensive to litigate.

ADA Cases Involving Flexible Work Arrangements and Telework

At summary judgment, these cases typically require a determination of whether regular physical presence in the office, with a specific start and stop time, is an essential job function as a matter of law. In sending the cases to trial, courts are rejecting “unthinking” assumptions about the workplace, requiring a “penetrating factual analysis” of how the specific job “is actually performed in practice” and whether FWAs have been successful for the plaintiff and other employees in the past. McMillan v. City of New York, 711 F.3d 120, 126 (2nd Cir. 2013)(reversing summary judgment for employer where plaintiff worked successfully with flex-time for several years); Carter v. Pathfinder Energy Servs., Inc., 662 F.3d 1134, 1146-47 (10th Cir. 2011)(overturning summary judgment where plaintiff could perform essential job functions part-time).

Courts are also discussing how “technological advances and the evolving nature of the workplace” have “contributed to the facilitative options available to employers” under the ADA. Solomon v. Vilsack, 763 F.3d 1, 17-19 (D.C. Cir. 2014) (reversing summary judgment for employer where plaintiff and coworker were strong performers using flex-time).

Full-time telecommuting as an accommodation understandably faces a high burden, because employees often require on-site supervision and need to be available to fill in for team members. Mason v. Avaya Communications, Inc., 357 F.3d 1114, 1122 (10th Cir. 2004)(working in office was essential job function); EEOC v. Ford Motor Co., 782 F.3d 753 (6th Cir. 2015)(while ADA mandates telecommuting, exceeding employer’s policy and practice of predictable teleworking one or two days per week is unreasonable).

Despite the ubiquity of FWAs and an increase in ADA and FMLA litigation, few employers train managers in ADA (or FMLA) compliance or how to manage FWAs successfully. This is a mistake. Managers know best what accommodations are reasonable. And, without a flexible work program that is consistently applied, employers may be open to liability.

Best Practices for Employers – Design Your FWA Program with an ADA/FMLA Compliance Component and Train on It

Employers and their legal counsel should take proactive measures to carefully design and implement flexible work programs. These programs need to include a strong training component for managers, to help them build agile teams that can absorb work disruptions of all types, and to participate meaningfully in the interactive process in order to make sound, legally defensible reasonable accommodation decisions.

Steps include:

1. Assure leadership and the entire organization understand the strategic value and legal imperative under ADA/FMLA for the program.

2. Explore what managers do now that works, and what additional flexible work arrangements they might be comfortable with.

3. Learn what employees want and what your organization can deliver.

4. Draft a written policy that defines eligibility for telework participation, including positions, performance level, and tenure. Some jobs and people won’t make the cut; some will be able to telework just one or two days per week.

5. Among written forms, have an application for requesting FWAs that clearly establishes the business case, as well as all communication norms.

6. Train managers to:

a. Focus less on face time, more on work outcomes, by strengthening their delegation skills
b. Use FWAs, cross training, and strong teams as a unified strategy to handle work ebbs and flows, including ADA/FMLA disruptions
c. Recognize potentially covered conditions under ADA and FMLA, understand the duty to accommodate, participate in the interactive process, and use FWAs to do so when appropriate

7. Assure job descriptions are updated to include essential functions.

In summary, FWAs are a critical component of employers’ workforce, talent, and compliance strategies. With proper planning and training, these programs can help manage risk while boosting the bottom line.