When the Americans with Disabilities Act became law in the early 1990s, employers and federal courts were confronted with claims by disabled employees that telecommuting should be recognized as a required form of reasonable accommodation. Early on, courts were reluctant to mandate that employers allow telecommuting, noting that regular attendance at the workplace was an essential job function, and that telecommuting generally was not an effective substitute for having the employee physically present at work.
As time went by, and as more employers voluntarily adopted telecommuting policies, judicial attitudes on this issue began to shift. More courts were willing to recognize that many jobs do not require the employee’s physical presence at work, and that technological changes have made working from a remote location more efficient. This change culminated last month in a decision from the Sixth Circuit Court of Appeals that explicitly rejected early ADA telecommuting decisions as obsolete due to technological changes.
In EEOC v. Ford Motor Co., the EEOC sued Ford on behalf of a purchasing employee with irritable bowel syndrome. Ford offered a number of accommodations, but the employee sought to work from home four days per week. Ford had in place a telecommuting policy, but declined to apply it to this employee based on its judgment that her job required her to personally interact with co-workers and suppliers. The EEOC sued, claiming failure to provide accommodation under the ADA.
In a 2-1 decision, the Sixth Circuit reversed the trial court’s grant of summary judgment to Ford, and remanded the case for jury trial. In its majority decision, the court acknowledged precedent stating that regular attendance is an essential job function, but said that these cases had been invalidated through technological development. The Sixth Circuit said that a jury could conclude that the employee could effectively perform her job functions from home through teleconferences and other collaborative technology. In other words, regular attendance may be an essential job function, but this does not necessarily mean regular physical attendance at work.
The dissenting judge noted that the ADA is designed to allow employers to generally structure their jobs and job requirements as they see fit. By mandating telecommuting, courts substitute their judgment for that of the employer as to what functions are required to effectively perform the work. The dissent also noted that the majority’s decision could cause employers to drop voluntary telecommuting polices out of concern that their discretion to deny it in inappropriate situations has been compromised.
Some companies such as Yahoo! have recently curbed their telecommuting policies over concerns that remote electronic access is not a substitute for face-to-face collaborative work among employees. These concerns may be especially valid for jobs such as buyers, where coordination of purchasing and interaction with suppliers could be essential to the work performed.
The jury in this case may reach the same conclusion, but the Sixth Circuit’s decision makes it more difficult and legally risky for employers to deny telecommuting as a form of ADA accommodation. If the final decision on the reasonableness of telecommuting is left to juries, employers will need to consider granting such requests, even in situations where they have serious misgivings over the ability of employees to effectively work from home.