Employer Religious Accomodations

Woodman v. Runyon , 132 F.3d 1330, 1343 & n.13 (10th Cir. 1997). Despite almost a decade of advances in communications technology, Mason demonstrates that the rule set forth in Vande Zande still holds in the general run of cases. There is, however, an important caveat. To the extent an employer provides an across-the-board policy that permits telecommuting, it will have a more difficult time arguing that physical presence is an essential function, and that working at home is not a reasonable accommodation. In Mason , 353 F.3d at 1120, the employer made a showing that all of its service coordinators worked their entire shift at the administration center, and that it had never permitted a service coordinator to work anywhere other than at an administration center. The experience of past and current employees with the same or similar positions is relevant evidence as to what an essential function is. See 29 C.F.R. § 1630.2(n)(3)(vi), (vii). If non-disabled individuals in a particular position are telecommuting full-time, it will be difficult, if not impossible, for an employer to argue that physical presence is an essential function. At that point, a disabled individual may be able to demonstrate that he should be permitted to work from home as a reasonable accommodation. Indeed, in that situation, the disabled employee may be able to make a disparate impact claim without having to deal with the reasonable accommodation issue. Under both theories, the employer can potentially prevail by demonstrating that, although it can trust some of its employees to work at home, it cannot trust the plaintiff. That will be a more fact-specific case, and one that is the employer's burden. By the same token, a request to work at home some of the time may be more likely to be a reasonable accommodation than a request to work at home all the time. See Rauen v. United States Tobacco , 319 F.3d 891, 896 (7th Cir. 2003) (plaintiff rejected employer's suggestion that she come into the office once a week). On the other hand, to the extent that an employer does not offer telecommuting as an option for its employees, the employer will likely prevail on whether physical presence is an essential function of a position. III. Medical leaves of absence The other frequently litigated issue regarding absence from the workplace has to do with whether granting leave can be a reasonable accommodation under the ADA. The law is clear that indefinite leave is not a reasonable accommodation because an indefinite absence renders an employee not "qualified" to carry out

create an undue hardship. See Langon , 959 F.2d at 1055 (agency stated that computer programming position "requires a great deal of exactness" and the assignments "most often require face-to-face contact with report requestors"). Although the D.C. Circuit has since stated that the government must consider allowing an employee to work at home in appropriate cases, it has ruled that a U.S. Attorney's Office properly rejected such an option for a coding clerk who faced tight deadlines. Carr v. Reno , 23 F.3d 525, 530 (D.C. Cir. 1994). Thus, there is no clear circuit split on this issue. Judge Posner described the telecommuting issue in terms that are helpful to the employer: Most jobs in organizations public or private involve team work under supervision rather than solitary unsupervised work, and team work under supervision generally cannot be performed at home without a substantial reduction in the quality of the employee's performance. This will no doubt change as communications technology advances, but is the situation today. Generally, therefore, an employer is not required to accommodate a disability by allowing the disabled worker to work, without supervision, at home. * * * An employer is not required to allow disabled workers to work at home, where their productivity inevitably would be greatly reduced. No doubt to this as to any generalization about so complex and varied an activity as employment there are exceptions, but it would take a very extraordinary case for the employee to be able to create a triable issue of the employer's failure to allow the employee to work at home. Vande Zande , 44 F.3d at 544. But see Hernandez v. City of Hartford , 959 F. Supp. 125, 132 (D. Conn. 1997) (criticizing Vande Zande as flying in the face of the requirement that inquiries under the ADA are to be made on a case-by-case basis). Vande Zande is particularly helpful in the Rehabilitation Act context because it states that when a government agency goes further than the law requires by permitting a disabled worker to work at home, "it must not be punished for its generosity by being deemed to have conceded the reasonableness of so far-reaching an accommodation." 44 F.3d at 538. Such language can, in some contexts, be used to counter language (based on pre-ADA legislative history) that the federal government is supposed to be a "model employer" of disabled individuals with duties that exceed those of private employers. See , e.g. ,

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