Is Telecommuting a More ‘Reasonable’ Accommodation Under the ADA?

by Pepper Hamilton LLP
Contact

A version of this article was originally published in the June 2014 issue of The HR Specialist. It is reprinted here with permission.

On April 22, 2014, the Sixth Circuit Court of Appeals in EEOC v. Ford Motor Company reviewed whether a telecommuting arrangement could be a reasonable accommodation for an employee suffering from a debilitating disability. Ford terminated the plaintiff, Jane Harris, from her position as a resale steel buyer after she asked to telecommute four days per week to manage her irritable bowel syndrome (IBS). The EEOC brought suit alleging that Ford discriminated against Harris on the basis of her disability and retaliated against her for filing a charge with the EEOC. The trial court granted summary judgment in favor of Ford, but the Sixth Circuit, in a 2-1 decision, reversed and remanded the case back to the trial court.

Harris had been a resale steel buyer at Ford since 2003. Resale steel buyers serve as intermediaries between the companies that use steel to produce parts for Ford and the steel suppliers themselves. Resale buyers respond to emergency supply issues to ensure continuous supply to the part manufacturers. Ford argued that the job essence “was group problem solving, which required that a buyer be available to interact with members of the resale team, suppliers and others” when a problem arose. It was Ford’s business judgment that such meetings were best handled face-to-face. Harris worked in this job until September 2009 when she was terminated.

Over time, Harris’s IBS worsened, and on bad days Harris was not even able to drive to work or stand up from her desk without soiling herself. Harris did work from home evenings and weekends, but Ford maintained that work outside of the normal “core” hours was not a substitute for regular hours because Harris could not “engage in team problem solving or access suppliers to obtain information during off hours” and Harris was marked absent when she missed work. Harris formally requested to telecommute on an as-needed basis as an accommodation for her IBS. Ford did have a telecommuting policy that authorized employees to work up to four days per week from home, but the policy specifically stated that it was not for “all jobs, employees, work environments or even managers.” Ford denied her request and offered several alternative accommodations, including moving her cubicle closer to the restroom or discussing another position more suitable for telecommuting. Harris rejected each of these options.

The court determined that the dispute focused upon whether Harris was “otherwise qualified for the resale steel buyer position.” Harris presented evidence that (1) she was qualified for the position after the elimination of the requirement that she be physically present at Ford facilities and (2) she was qualified with a telecommuting accommodation. The court found this to be sufficient evidence to create a genuine issue of fact and require Ford to show that her physical presence is an essential function of the job or that the telecommuting accommodation would create an undue hardship. The court distinguished previous decisions by stating “[w]hen we first developed the principle that attendance is an essential requirement of most jobs, technology was such that the workplace and an employers’ brick-and-mortar location were synonymous.” It reasoned with the advance in technology the workplace is anywhere job duties can be performed, making the question not whether “attendance was an essential job function” but “whether physical presence at the Ford facilities was truly essential.” The court discredited the alternative accommodations proposed by Ford, stating that it was unreasonable to expect Harris to suffer the humiliation of soiling herself and that “reassignment of an employee is only considered when accommodation within the individual’s current position would pose an undue hardship.”

What does this decision mean for employers here in the Third Circuit? Although not precedential in this jurisdiction, it certainly could be cited as persuasive authority and can be considered the first evolutionary step in recognizing that advances in technology permit “attendance” to include working someplace other than the employer’s “brick-and-mortar” facility. Troubling to employers is the acceptance of Harris’s “self-serving testimony” that her job was amenable to telecommuting and the rejection of Ford’s overwhelming evidence to support its business judgment. The court essentially acted as a “super personnel department” deciding what was an essential function and what was not. Worse yet is the decision by the court concerning the offer of an alternative position, which was rejected outright by Harris, aborting that interactive process before a specific position was even identified.

Although the reasoning of this decision can be called into question, its existence should provide employers pause. With the advances of technology, more employees will argue that telecommuting is a reasonable alternative to attendance at the employer’s workplace. Employers should make certain that their job descriptions clearly state the essential functions required and include that the definition of “attendance” means being at the employer’s facility and not just “on the job” at some offsite location. Employers should also evaluate any existing telecommuting policy and consider including which classification of jobs would be suitable for this type of accommodation.

 

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.

© Pepper Hamilton LLP | Attorney Advertising

Written by:

Pepper Hamilton LLP
Contact
more
less

Pepper Hamilton 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.