The law now recognizes telecommuting as a viable way for employees to fulfill their job requirements, thanks to a case involving the banking sector. In an important federal ruling last year—Bixby v. JPMorgan Chase—the court said plainly for the first time that advances in technology have made telecommuting a legitimate part of the American workplace, and that old notions of home offices equating to subpar performance no longer apply.

David Bixby, a former information technology project manager who said telecommuting alleviated his depression and anxiety, sued Chase for denying his requests to work from home, claiming the company had violated the Americans with Disabilities Act. Chase argued Bixby's request to telecommute was unreasonable under the ADA, because he could not adequately perform his job duties from home. Both parties filed for summary judgment.

The judge for the Northern District of Illinois shot down Chase's argument in March 2012, saying it relied on a precedent decided more than 17 years ago, "when the Internet and technology had not yet made remote access to the job site and its operational systems as feasible as it is today." The judge cited language within the old precedent recognizing that advances in technology could eventually make working from home a reasonable option—an eventuality that apparently, in the court's view, has come to pass.

Evidence that three other Chase project managers were telecommuting on a full-time, permanent basis made it difficult for the company to convincingly argue that Bixby's request to work at home was unreasonable. The case never went to trial; the parties settled shortly after the judge's ruling.

Another ADA case, Core v. Champaign County Board of County Commissioners, was decided later in 2012 in federal court in Ohio, this time in favor of the employer. But in the ruling, the judge quoted the old precedent, stating: "Today, in this court's view, it may not '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.' The ultimate determination of reasonableness is a fact-specific inquiry and a question for the fact-finder." The judge in a third ADA decision last year, EEOC v. Ford Motor Co., also analyzed the plaintiff's job requirements to determine whether her telecommuting request was reasonable, before siding with her employer.

These decisions have implications outside of the specific confines of ADA case law. Not all of the rulings favored the employee, but taken together they signal how the courts' views have evolved toward a more favorable stance on telecommuting in general.

"It recognizes that because of the march of time and technology, the essential functions of some jobs may be performed remotely, without the need to be physically present within the employer's offices," says Christopher J. Moran, a partner in the labor and employment practice at Pepper Hamilton.

Paige O. Barnett, an attorney and consultant with Employment Practices Solutions, agrees. "It will always be a factspecific inquiry and depends in large part on the position in question," she says. "But given the well-established ease and low costs of telecommuting, companies may have a hard time credibly arguing that a given employee must be physically present in the workplace five days a week."

Moran says that in the absence of clear, uniform policies, it could be unwise to let individual managers, who may have their own biases for or against telecommuting, determine who works from home. Barnett says it's ok for managers to make the decision, so long as the option to telecommute is consistently implemented. "Allowing one employee the benefit of working from home but denying another in a similar position with similar responsibilities exposes an employer to potential liability," she says. —S.K.

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