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

by Pepper Hamilton LLP

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.

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