Is Telecommuting As A Reasonable Accommodation Under The ADA The New Norm?

by FordHarrison

Executive Summary: The Sixth Circuit recently held that a four day per week telecommuting arrangement could be a reasonable accommodation for a disabled employee, even though the employer determined, in its business judgment, that teleconferencing was an insufficient substitute for in-person work. The court noted that, given the state of modern technology, the class of cases in which an employee can fulfill all requirements of the job while working remotely has greatly increased, and it is no longer the case that jobs suitable for telecommuting are "extraordinary" or "unusual." See EEOC v. Ford Motor Co., No. 12-2484 (6th Cir. Apr. 22, 2014).  

Background Facts:  Jane Harris worked as a resale buyer for Ford Motor Company from 2003 to 2009. Her role required some individual tasks, but the essence of her job required group problem-solving. Ford utilized a telecommuting policy that authorized employees to work up to four days per week from a telecommuting site, and several resale buyers telecommuted one day per week.   

Throughout her employment, Harris suffered from irritable bowel syndrome ("IBS"). As her condition worsened, she began taking intermittent FMLA leave when she experienced severe symptoms. Harris was eventually permitted to work a flex-time telecommuting schedule on a trial basis. However, the company found this arrangement problematic as Harris was unable to establish regular and consistent work hours. Harris requested she be allowed to telecommute up to four days per week as an accommodation for her IBS. In response Ford offered her two alternative accommodations: moving her cubicle closer to the restroom or finding an alternative position. Harris rejected these offers and filed a charge of discrimination with the EEOC. The EEOC later filed suit on her behalf in federal court, claiming Ford violated the Americans with Disabilities Act (ADA). The trial court granted summary judgment in favor of Ford; however, on appeal the Sixth Circuit reversed the trial court. 

Analysis of the Court:  In a 2-1 decision, the Sixth Circuit held that Harris had presented evidence that she was a qualified individual with a disability on two alternative bases: (a) she was qualified for the position after the elimination of the requirement that she be physically present at work, or (b) she was qualified for the position with a telecommuting accommodation. The burden then shifted to Ford to prove either (i) the physical-presence requirement was an essential function of Harris's job or (ii) the telecommuting arrangement would create an undue hardship. The court found that Ford failed to prove either. 

With regard to the physical-presence requirement, the court held that physical presence at the workplace could be considered an essential job function for positions that required face-to-face interactions with customers or other objects at the workplace, but noted that "the world has changed since the foundational opinions regarding physical presence in the workplace were issued. . .Therefore, we are not persuaded that positions that require a great deal of teamwork are inherently unsuitable to telecommuting arrangements." The court further held that, while leave on a sporadic or unplanned basis may be an unreasonable accommodation, telecommuting does not raise the same concerns as flex-time scheduling because an employer can still rely on an employee to be working during scheduled hours while working remotely. Accordingly, the court rejected  Ford's concern that Harris be available for meetings or to handle urgent matters during the workday finding that her ability to engage in those activities did not depend on her physical presence in the office, but rather on her being consistently available during "core" business hours. In support of its rejection of Ford's business judgment, the court stated:

Courts routinely defer to the business judgment of employers because courts are not equipped with the institutional knowledge to sit as "super personnel department[s]." However. . . while we do not allow plaintiffs to redefine the essential functions of their jobs based on their personal beliefs about job requirements, neither should we allow employers to redefine the essential functions of an employee's position to serve their own interests. Rather, we should carefully consider all of the relevant factors, of which the employer's business judgment is only one.

The court also declined to find the alternative accommodations offered by Ford reasonable.

Employers' Bottom Line:  This decision is troubling for employers because it shows that a court may reject the employer's business judgment in managing its workforce. Employers, particularly those with existing telecommuting policies, are now cautioned to seriously consider telecommuting as a reasonable accommodation under the ADA where an employee's disability affects his or her ability to be physically present in the workplace, but does not ostensibly affect the employee's ability to work during normal working hours. An important distinction must be made regarding whether the employee is seeking a flex-time or a telecommuting arrangement. Additionally, in the Sixth Circuit, courts cannot be expected to defer to an employer's business judgment that physical presence in the workplace is an essential job function:  the employer must be able to demonstrate why physical presence is required and must be able to do so by relying on reasons beyond generalized concepts such as "team work" and "interoffice interaction." Carefully crafted job descriptions and narrowly defined telecommuting policies will be of the utmost importance.

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.

© FordHarrison | Attorney Advertising

Written by:


FordHarrison 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.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

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.


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 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:

- 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.