Advances in technology require another look at telecommuting as a reasonable accommodation

by McAfee & Taft
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The Sixth Circuit Court of Appeals revived an Americans with Disabilities Act (ADA) suit brought on behalf of an ex-Ford Motor Company worker, showing that courts are warming to telecommuting as an ADA accommodation. As a result of the decision, more employees are likely to ask to work from home.

Attendance may no longer mean showing up at the employer’s physical location

Jane Harris worked for Ford Motor Company as a resale steel buyer from 2003-2009. Throughout the entire period of her employment, Harris suffered from Irritable Bowel Syndrome (IBS), an illness that causes fecal incontinence. In her job, Harris served as an intermediary between steel suppliers and companies that use steel to produce parts for Ford to ensure no gap in the supply of steel. Although the position involved individual tasks, such as updating spreadsheets and periodic site visits, the essence of the job was group problem solving, which Ford contended required the buyer be available to interact with members of the resale team, suppliers and others. Throughout her employment, Harris received, generally, adequate performance reviews, although in 2007 and 2008 she received the lowest contribution assessment level, placing her in the bottom percentage of employees in her group.

fecal-incontinenceOver time Harris’s symptoms from IBS worsened, and on bad days she would be unable to drive or even stand up from her desk without soiling herself. Her supervisor unofficially allowed her to work a flex-time telecommuting schedule on a trial basis. This supervisor deemed the trial unsuccessful because Harris was unable to establish regular and consistent work hours. Harris, in an effort to make up the work, worked nights and weekends, but when she did, she made mistakes and missed deadlines because she lacked access to information from suppliers.

In February 2009, Harris formally requested that she be permitted to telecommute on an “as needed basis as an accommodation for her disability.” Ford had a telecommunication policy that authorized employees to work up to four day per week from a telecommuting site. The policy provided that all salaried employees were eligible to apply, but specifically stated that such arrangements were not appropriate for some jobs. Under the policy, other resale buyers telecommuted one scheduled day a week.

Harris’s supervisors determined telecommuting would not be available to her four days a week because email and teleconferencing was an insufficient substitute for in-person team problem solving. An HR representative suggested alternative accommodations, including moving Harris’s cubicle closer to the restroom or seeking another job within Ford that was appropriate for telecommuting. Harris rejected these options. Harris was ultimately put on a performance enhancement plan (PEP) and was terminated when she failed to meet the objectives in the PEP.

District court rules request not a reasonable accommodation

Harris filed a charge of discrimination with the EEOC, who took on the case on her behalf. The district court found that Harris’s request to telecommute four days was not a reasonable accommodation and declined to second-guess the employer’s business judgment regarding the essential functions of the job. The EEOC appealed.

Sixth Circuit reverses, citing advances in technology

The dispute in the case centered upon whether Harris was “otherwise qualified” for her position, as she was clearly disabled. Harris presented evidence to establish she was qualified on two alternative bases: (1) if the requirement to be physically present was eliminated or (2) if telecommuting was permitted as an accommodation. The burden then shifted to Ford to prove that either the physical presence requirement was an essential function or that telecommuting would create an undue hardship. While noting earlier cases holding otherwise, the Sixth Circuit Court of Appeals said attendance at the workplace could no longer be assumed to mean attendance at the physical location. Given advances in technology, the workplace may be anywhere an employee can perform job duties. Under this analysis, the question was not whether attendance was an essential job function, but whether physical presence at Ford was essential.

Ford argued Harris had to be available during working hours to interact and access information. However, the court noted that the vast majority of communications with internal and external stakeholders were done via conference call, and that other resale buyers were permitted to telecommute one day a week. As a result, the court found that telecommuting was a reasonable accommodation in this case. The court stated the problem was not telecommuting, but being available during core business hours.

Ford’s final argument was that Harris was not “otherwise qualified” because she rejected alternative reasonable accommodations offered by Ford. The court disagreed. Ford was not entitled to force Harris to accept an alternative position or other reasonable accommodation because telecommuting as proposed by Harris was a reasonable means of accommodating her disability. The burden shifted to Ford to prove such an accommodation would prove an undue hardship. This Ford could not do, considering Ford’s financial resources and that Ford’s written policy was to absorb costs for employees approved to telecommute.

Advice to employers

The decision rejects the presumption that the workplace is the employer’s physical worksite and additionally rejects any automatic deference given to an employer’s business judgment with respect to which functions of a job are essential. Prior cases have declined to second-guess the employer’s business judgment on a job’s essential functions, routinely deferring to employers because a court is not designed to serve as a “super personnel department.”

Employers should take requests from employees to telecommute seriously and evaluate on a case-by-case basis considering technology, what works, and what does not for the job at issue. Remember, employers are required to participate in the interactive process with employees requesting accommodations, which means seriously considering all options, including those suggested by the employee. Additionally, employers should review their telecommuting policies to decide if this is something they want to continue to offer, or offer on the terms currently allowed. Finally, job descriptions should be reviewed and updated to make clear if being physically present in the workplace is an essential part of the job. Given advances in technology, could a receptionist work from home?

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.

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