Changes in telecommuting practices may be around the corner for many employers, as the recent 2-1 decision in EEOC v. Ford Motor Co., 2014 FED App. 0082P (6th Cir. 2014) may usher in significant changes in what constitutes a reasonable accommodation for an employee with a disability under the ADA. According to the Sixth Circuit, given the advances in technology, employers need to be more open to telecommuting arrangements and cannot assume that coming to work is always an essential job function. But the U.S. Chamber of Commerce warns—in an amicus brief filed in early June—that these changes may have a “devastating” effect on employers by allowing employees to choose “where and when” they want to work.
The EEOC v. Ford lawsuit originated in 2011 on behalf of Jane Harris, a Ford employee hired in 2003 as a resale buyer, an intermediary between Ford’s steel suppliers and the companies that produce automobile parts. As a resale buyer, Harris was tasked with ensuring there were no interruptions in the steel supply. The position entailed some site visits and individual computer work, but was largely comprised of, in Ford’s eyes, “group problem solving” with other Ford employees when emergencies arose. Thus, Ford considered the position to require a physical presence at the office.
However, Harris suffered from irritable bowel syndrome and over the course of her employment with Ford, her conditions worsened. Harris’s symptoms became such that, at times, she could not drive to work or walk around the office. Harris began to take FMLA leave during her irritable bowel syndrome flare ups and attempted a trial flex-time telecommuting schedule. However, Harris’s inability to keep regular hours caused her to be unavailable to suppliers during normal business hours, which in turn caused her to make mistakes and miss deadlines in her work. In 2009, Harris formally requested a telecommuting arrangement, but Ford determined her position was not suitable for telecommuting. Although Ford offered to move her cubicle closer to the restroom or to switch her to another position more suitable for telecommuting, Harris rejected both alternatives. Thereafter, Harris filed a charge of discrimination with the EEOC, and soon after was given low reviews and placed on a Performance Enhancement Plan. When Ford determined Harris failed to meet the objectives, Harris was terminated.
The EEOC filed the instant suit alleging: (1) Ford failed to accommodate Harris’s disability under the ADA, and (2) retaliation based on filing an EEOC charge. A Michigan federal district judge granted summary judgment to Ford, ruling that Harris’s telecommuting proposal was not reasonable. However, in April of this year, the Sixth Circuit revived the lawsuit, overturning and remanding the decision back to the district court. The Sixth Circuit reasoned that technology has advanced so much in recent years that “attendance” at work can no longer mean “attendance at the employer’s physical location,” especially since Harris’s job did not consistently require face-to-face contact. Furthermore, the Sixth Circuit reasoned that if Ford could offer flex time and/or telecommuting options to other employees, Harris’s request was not unreasonable.
The potential reach of the court’s decision was sharply criticized by the dissenting judge who wrote, in relevant part: “The majority holds that a telecommuting arrangement allowing an employee to telecommute four out of five days of the workweek on a spur-of-the-moment, unpredictable basis is a reasonable accommodation under the ADA for a position that involves routine face-to-face interactions.” Although many employers already take advantage of current technology to offer some type of flex-time or telecommuting option to their employees, the U.S. Chamber of Commerce warns that the Ford decision may spell disaster for employers. In fact, the U.S. Chamber of Commerce—along with other employer groups—filed an amicus brief supporting Ford’s argument that the Sixth Circuit’s decision should be reheard, because otherwise it will allow employees to create an unpredictable work schedule that may jeopardize work product and the employer’s overall business. See Brief for The Equal Employment Advisory Council, Chamber of Commerce of the United States of America et al. as Amici Curiae Supporting Defendant-Appellee, EEOC v. Ford Motor Co., 2014 FED App. 0082P (6th Cir. 2014). Echoing the dissent in Ford, the amici also predict that the Ford decision will threaten existing limited, predetermined flex-time or telecommuting work arrangements. If employers see the existence of any type of work-at-home arrangement as opening the door to the type of telecommuting arrangement sought in Ford, then employers may cut flex-time and telecommuting arrangements entirely. The result would adversely affect countless employees.
Employers will want to watch the Ford decision closely, as it could have wide-reaching implications on work-at-home and flex-time arrangements. In the meantime, employers may want to revisit their current arrangements and assumptions for allowing—or not allowing—employees to work remotely.