Tuesday, July 11, 2017

This Shouldn't Be News, But It Is

The Fifth Circuit Court of Appeals recognizes that employers generally are entitled to want people at work on a regular and predictable basis.

This is, or should be, obvious, but it's possible for an employer to undercut this rule--work at home policies, flexible workday arrangements, off-site management techniques--all go to the idea that someone doesn't have to be at work regularly.

The key is to enforce these flexible work arrangements in such a way that a court or jury can see where the lines of effective flexibility are drawn by the business, based on some type of rational assessment of business needs.  If you can do that, then you can enforce an attendance policy that doesn't have the same flexibility of work hours or attendance for all employees.  It doesn't hurt to try to accommodate a request for flexible work arrangements, either.  If the agreed-on work accommodations fail, the employer has direct evidence of the impracticality of the arrangement.

The Sixth Circuit dealt with this problem in the context of a telecommuting requirement as accommodation under the ADA a few years ago.  Its well-reasoned opinion is here.

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