Court Rules That Telecommuting May Be a Reasonable Accommodation Under the ADA

by Stoel Rives LLP
Contact

The Sixth Circuit recently held in EEOC v. Ford Motor Co. that regular attendance may not mean physical presence in the workplace, and that telecommuting may be a reasonable accommodation for some employees with disabilities under the Americans with Disabilities Act ("ADA").  This case provides yet another cautionary tale for employers wrestling with complex ADA accommodation issues.

Irritable Bowel Syndrome Makes It Hard To Be At Work--Can Telecommuting Be The Answer?

Jane Harris had worked at Ford since 2003 as a resale buyer, acting as an intermediary to ensure there was no gap in steel supply to parts manufacturers. Although the job duties included such tasks as updating spreadsheets and making site visits, the main function of the job was group problem-solving, which required communication and collaboration with the resale team and others in the supply chain. Harris’ managers determined that such interactions were best handled face-to-face.

Harris suffered from irritable bowel syndrome, which caused fecal incontinence, and began taking intermittent FMLA leave when her symptoms flared up. Her job performance suffered after she began to take leave. Harris was unable to establish consistent working hours, and frequently made mistakes because she could not access suppliers while working nights and weekends. Her co-workers and manager were forced to pick up some of the slack. Eventually, in February 2009, she formally requested that she be permitted to telecommute on an as-needed basis to accommodate her disability. Although Ford had a policy permitting telecommuting up to four days a week, the policy also stated that such an arrangement was not appropriate for all positions or managers. However, some of Harris’ counterparts telecommuted one day a week.

Ford denied Harris’ request, and offered alternative accommodations including a cubicle closer to the restroom and the option of looking for a different, more telecommuting-friendly job within the company. Harris filed a discrimination charge with the EEOC and shortly thereafter was given a poor performance review and placed on a Performance Enhancement Plan. After failing to meet the goals set forth in the plan, Harris was terminated.

 

Harris filed a lawsuit, alleging that Ford violated the ADA by failing to accommodate her disability. The lower court granted summary judgment in Ford’s favor, and Harris appealed. The Sixth Circuit reversed the ruling, and found that Harris’ case should proceed to trial.

 

Sixth Circuit Answers:  Yes!

 

The Court began by noting that the ADA requires employers to make reasonable accommodations for an “otherwise qualified” employee with a disability. The Court found that Harris could be “otherwise qualified” for two reasons. First, Harris would be qualified if Ford removed the requirement that she be physically present at work. Although Ford argued that her consistent presence at its work site was an “essential function” of the job (a position that has been upheld in other cases, including a Ninth Circuit case we blogged about two years ago), the Court found there was insufficient evidence on this point. In doing so, the Court noted that given technological advances, regular attendance did not necessarily mean being present at the employer’s “brick-and-mortar location.” The Court accepted Harris’ contention that most of her communications took place over conference call, even when she was physically present at Ford, and also noted the telecommuting policy that permitted Harris’ counterparts to work remotely (albeit less frequently than what Harris was requesting).

 

The Court also found that Harris would be qualified if Ford granted her the reasonable accommodation of a telecommuting arrangement. The Court rejected Ford’s argument that such an arrangement would prevent Harris from interacting with others during business hours, noting that she could still maintain a predictable, mutually agreeable schedule on a remote basis. The Court again cited technological advances, stating that “the class of cases in which an employee can fulfill all requirements of the job while working remotely has greatly expanded.” 

 

What Employers Need To Watch Out For

 

So what does the decision mean for employers? Undoubtedly, it provides some leverage for would-be plaintiffs seeking telecommuting arrangements as a reasonable accommodation in the workplace. The EEOC’s pursuit of the lawsuit also suggests that it will continue to closely scrutinize employer denials of telecommuting requests. 

 

But the Court did not find, however, that employers were always required to acquiesce to telecommuting demands.  Instead, the decision is a good reminder that employers should tread carefully when considering accommodation requests, and above all perform the "individualized assessment" of each employee in each case that is required under the ADA's interactive process.  That process should include a fundamental (re)examination of job requirements to see whether they really are "essential," and should not dismiss accommodation requests involving telecommuting or similar alternative arrangements out of hand.  Instead, employers must consider the impact that technology might have on an employee’s ability to perform the essential functions of his or her position remotely.  If, after engaging in that detailed review, you think a particular employee accommodation request is unreasonable, the reasons for denying the request should be well-articulated and meaningful alternatives should be offered. 

 

Employers should also conduct a periodic check of their telecommuting policies. This means not only ensuring that boundaries for use and approval are clearly articulated in the policy itself, but also ensuring that all employees are actually working within the confines of the policy. Courts in these types of cases will undoubtedly want to know whether other employees are allowed to telecommute, and whether anyone has (whether formally or informally) been allowed to deviate or go beyond what is explicitly stated in the policy. Employers are more likely to lose these cases if they deny an employee’s request to telecommute while simultaneously allowing others to do it (perhaps in excess of what the written policy provides).

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Stoel Rives LLP | Attorney Advertising

Written by:

Stoel Rives LLP
Contact
more
less

Stoel Rives LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.