Stephen B. Maule

Stephen B. Maule Partner

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Working from Home Becomes More Common – And Raises Numerous Legal Issues Employers Must Consider

Previously, employers could deny employee requests to work from home or telecommute as an alternative work arrangement because employees had to be at the office to perform their work duties. Oh, how times have changed! Due to improved technology, a changing mindset, and an overall shift in the type of work performed in the U.S., employers are having and will have more difficulty establishing employees must be at the work place in order to perform their duties. As a result, employers are being forced to decide whether telecommuting meets their culture in the absence of a need to accommodate an individual’s disability under the Americans with Disabilities Act (“ADA”).

As more and more male baby boomers are retiring, they often are being replaced by women and millennials, two groups much more likely to require and/or request a flexible work schedule, including working from home on at least an occasional basis. In addition, to meet this changing workforce, a growing number of companies are willing to allow such flexibility to attract top talent in order to be the employer of choice.

Employers considering such arrangements must be cognizant, however, of the various legal implications associated with employees working from home, including whether injuries incurred while working at home are covered by workers’ compensation, employee actions implicating liability to the employer as an agent, wage and hour implications and, as addressed recently by the 7th Circuit Court of Appeals, reasonable accommodation under the ADA and leave under the Family and Medical Leave Act (“FMLA”).

In Wink v. Miller Compressing Company, No. 16-2339 (7th Cir. 2017), Wink, an employee in the company’s order processing department, which required handling and processing paperwork, requested and received leave under the FMLA to take her autistic child to therapy and daycare. After the child no longer could attend daycare, Wink requested and received permission from the employer to work from home two days per week, using FMLA time to care for her son during these two days as needed. Several months passed with no significant issues under this working arrangement when the employer, going through financial difficulties, informed all employees, including Wink, they no longer could work from home. The employer gave Wink only one working day to find daycare arrangements for her son. In addition, the human resources representative erroneously told Wink that the FMLA did not cover care for her child, only leave for therapy and doctor’s visits. When Wink was unable to find child care in such a short time, the employer terminated her employment.

The case went to trial and a jury awarded the employee damages and attorney’s fees, concluding the employer retaliated against the employee for wanting to work from home. The 7th Circuit affirmed the award, concluding that since the working arrangement had gone well for several months, a reasonable inference existed that the employer was upset by the employee’s request to stay home and work. The Court went further and awarded Wink 100% of her attorney’s fees, eliminating the 20% reduction in attorney’s fees ordered by the trial court.

Employers should consider the 7th Circuit’s ruling as a warning to be extremely careful when analyzing an employee’s request to work from home. Consideration must be given to all applicable laws, including the FMLA and ADA, to ensure an employee’s request for leave or an accommodation is reasonable and that any decision to deny such a request is based on legitimate, non-discriminatory reasons unrelated to the employee’s disability or leave request. Managers and supervisors need to be trained on the requirements of both laws and reminded that working from home can be a viable option in more positions than previously thought. Courts increasingly are willing to conclude an employee’s request to work from home is reasonable and workable in order to address a medical condition or care issue. Outright rejection of such a request is ill-advised and most certainly will result in litigation.

The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters for over sixty years, and are available to discuss these issues and others. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.

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