Telecommuting May Be Reasonable ADA Accommodation for Some Workers, Sixth Circuit Holds

by Ballard Spahr LLP

In a decision with possibly far-reaching consequences, the U.S. Court of Appeals for the Sixth Circuit recently held that an employer may be required to grant a telecommuting request as a reasonable accommodation under the Americans with Disabilities Act (ADA). Significantly, the court made this ruling in the face of employer evidence that face-to-face interaction with other employees was an essential function of the requesting employee’s position. The decision may pave the way for increased requests by employees to work remotely to accommodate certain illnesses or conditions, as well as increased scrutiny of employers that deny such requests by the U.S. Equal Employment Opportunity Commission (EEOC) and the courts.

The ADA requires that employers provide reasonable accommodations to individuals with disabilities who are otherwise qualified to perform the essential functions of their positions, provided that the requested accommodations do not impose an undue hardship. In EEOC v. Ford Motor Co., the Sixth Circuit considered whether permission to telecommute up to four days a week was a reasonable accommodation for an employee with irritable bowel syndrome.

The employee, a resale steel buyer, held a position that required a large amount of group problem-solving and other interaction with co-workers and suppliers. The employee also needed to be available during regular business hours to handle emergencies as they arose. When the employee’s condition worsened to the point where she experienced incontinence when she attempted to drive or even stand up from her desk, she requested permission to work remotely up to four days a week. The employer denied the request, in part because it determined that e-mail and teleconferencing were insufficient substitutes for face-to-face communications for someone in the employee’s position.

The EEOC sued on the employee’s behalf. The district court granted summary judgment for the employer, holding that because the employer deemed the ability to interact face-to-face with co-workers and suppliers an essential function of the employee’s position, the employee was not qualified for the position with or without her requested accommodation. The district court concluded that it should not second-guess the employer’s business judgment regarding the essential functions of the job. On appeal, however, the Sixth Circuit reversed.

The Sixth Circuit refused to grant deference to the employer’s determination that “physical attendance” was an essential function of the employee’s position. The court considered other factors—including the employee’s own impressions of how often she spoke to other employees face-to-face and via conference call—and found that it could not determine that, as a matter of law, the employee needed to be physically present at the employer’s office to effectively perform her job.

The Sixth Circuit also noted that prior precedent that found physical presence in the workplace an essential function of a position may be antiquated. Concepts of “the workplace” that informed decisions of the past assumed that employees could not actively participate with their peers and be subject to effective supervision without being inside the employer’s facility. Given recent changes in technology and the prevalence of e-mail, teleconferencing and other online communication, the court reasoned, employees today can be “present” in the workplace without having to be in the same location as those with whom they interact. Consequently, the court found, it no longer will be unusual for an employee to be able to perform his or her job from home.

Both within and outside of the Sixth Circuit, this opinion could serve as the basis for future employee requests for permission to telecommute. And because the EEOC pursued this claim on the employee’s behalf, it is likely that the federal agency will continue to scrutinize employer responses to requests for permission to work from home and telecommuting policies in general. Indeed, the very same day the opinion was released, the EEOC published on its website an informal discussion letter in which it suggested that employer use of a generalized accommodations policy could violate an employer’s responsibility to review each request for ADA accommodations individually. The letter specifically noted that a statement in such a policy that telecommuting is “generally” not a reasonable accommodation may no longer be an accurate statement of the law. All employers should review their reasonable accommodation and telecommuting policies in the light of this decision.

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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