IBM recently announced a new policy that reverses decades of practice: no more telecommuters. Telecommuters, also called remote employees, are employees that do their job from home or any other remote location. Companies like IBM instituted these policies in the 1990’s and 2000’s. Work-from-home policies like these were considered a win-win: companies save money on office overhead, while employees gain flexibility, spend more time with their families, reduce or eliminate commute times, and perhaps even improve work efficiency by cutting down on office interruptions.
IBM’s surprise change in course will affect roughly 40% of its workforce. IBM’s telecommuters are required to come into a regional work hub, find a new role within the company, or quit. This ultimatum came with a 30-day deadline for relocation, and 90 days to find a new role within the company, and the deadline for relocating expires almost immediately.
For many, IBM’s telecommuting option was a chance to work from home in less expensive locations. Now IBM is forcing its remote-workforce to “co-locate” to one of six offices in the following cities: Atlanta, Raleigh, Austin, Boston, San Francisco, or New York.
It remains unclear how many Texans will be affected by this policy, but one thing is clear. According to this new policy, if you are an IBM employee in Texas, and your team is located in Austin, you must report to Austin. However, if you are an IBM employee in Texas, and your team is located in San Francisco, you are apparently required to report to the San Francisco office.
So, if I am an IBM’er or similar tech employee, am I required to report to the office if my company changes policy? What if I am a project manager, senior software engineer, software engineer, IT specialist, senior systems engineer, computer programmer, managing consultant, or application developer?
The answer is: it depends. The bad news is that employers have a lot of discretion regarding work location. Most Texas tech employees are at will, meaning companies can change their job requirements or even location for good reason, bad reason, or no reason at all, as long as the company does not change these things for an illegal reason. Illegal reasons are those reason prohibited by state and federal law.
The good news is that federal law provides some protection. The federal American with Disabilities Act, as Amended (ADAAA) requires employers to provide reasonable accommodations to certain workers with health impairments. In other words, qualified workers may have the right to work remotely as a reasonable accommodation. Federal regulations define a reasonable accommodation as modification or adjustments to the work environment that enable an individual with a disability who is qualified to perform the essential functions of their position.
The Equal Employment Opportunity Commission (EEOC) has stated: , “An employer should not . . . deny a request to work at home as a reasonable accommodation solely because a job involves some contact and coordination with other employees.” https://www.eeoc.gov/facts/telework.html
Some more good news is that once the employer carries the burden on telework accommodation requests. In EEOC v. Ford Motor Co., 752 F.3d 634, the Court clarified that it is generally the employer’s burden to prove that an employee with a disability’s physical presence in the workplace is required.
More good news that may surprise you is that the definition of disability under the federal law is not as strict as the term “disability” suggests. For instance, the employee in EEOC v. Ford Motor Co., was diagnosed with IBS (irritable bowel syndrome), a gastrointestinal disorder that qualifies as a disability under the ADA. The key takeaway is that if you have a bona fide medical reason to not work from the office, you may have protection here.
Employees may have protected rights that must be weighed against a surprise return to the office policy. Practically speaking, companies like IBM may be required to accommodate some members of their workforce by allowing them to remain where they are and continue to work remotely. Yet, determining what constitutes a reasonable accommodation requires balancing a myriad of factors. In other words, for each accommodation request, the employer must make an individualized assessment. No two situations are alike.
So, must you either “come into the office or quit?” The answer probably requires quick action and a detailed, fact-specific, legal analysis.