In the US, under the Americans with Disabilities Act (ADA) employers are required to provide qualified individuals who have a disability with a reasonable accommodation absent an undue hardship. Whether working from home is a reasonable accommodation is a fact intensive analysis that should be conducted for each circumstance. However, last week, the Sixth Circuit in EEOC v. Ford Motor Company [pdf], opened the door wider for those employees seeking telecommuting as a reasonable accommodation.
The Sixth Circuit reversed the trial court’s grant of summary judgment in favor of Ford Motor Company and reinstated the EEOC’s case against Ford concluding that the EEOC had provided evidence that the employee is “otherwise qualified” for her position, either because her physical presence is not “essential” or because she requested a reasonable accommodation for her disability. The employee suffered from irritable bowel syndrome and requested to participate in the telecommuting program or another accommodation. As one of seven resale buyers, Ms. Harris’s position required that she ensure that her assigned specific Ford suppliers have a steady supply of steel. Thus, she was required to regularly interact with her coworkers and contacts. Ford produced evidence that interaction with suppliers is most effective in face-to-face meetings and requires that the resale buyers often visit the supplier sites. Consequently, Ford denied her request to telecommute for up to four days per week due to her required regular interaction and the fact that her work schedule would be unpredictable.
Although Ford did not grant her requested accommodation, Ford offered Ms. Harris other possible alternatives (e.g., moving her desk closer to restroom and finding her another position which would allow for telecommuting), but Ms. Harris rejected the proposals. When Ms. Harris’s performance declined, she filed a charge with the EEOC. Ford subsequently put Ms. Harris on a performance enhancement plan. However, when her performance failed to improve, Ford terminated her employment, and she filed another charge. The EEOC then filed a lawsuit against Ford.
In reversing the trial court, the Sixth Circuit focused on the changing technological times and how technology is putting less of an emphasis on an employee being physically present at their place of work. Specifically, the court said that:
[A]s technology has advanced in the intervening decades, and an ever-greater number of employers and employees utilize remote work arrangements, attendance at the workplace can no longer be assumed to mean attendance at the employer’s physical location. Instead, the law must respond to the advance of technology in the employment context, as it has in other areas of modern life, and recognize that the ‘workplace’ is anywhere that an employee can perform her job duties.
As such, the “vital question” for the court was not whether “attendance” was an essential job function for the position but whether physical presence was truly essential. The court also acknowledged Ford’s arguments that the position required a great deal of face-to-face communication and involved a great deal of teamwork. However, they were not persuaded by the arguments, determining that positions that require a great deal of teamwork are not necessarily unsuitable for telecommuting arrangements. Also of importance, the Sixth Circuit found that Ford’s alternative accommodation – moving her desk closer to the bathroom– not sufficient because Ms. Harris’ symptoms could occur when she stood up at her desk and the Court noted she should not be subjected to soiling herself in front of her co-workers.
The Sixth Circuit held that the EEOC put forward evidence that physical presence may not be an essential function of Ms. Harris’ job as a resale buyer. The court noted that it is not rejecting the “long line of precedent” recognizing predictable attendance as an essential function of most jobs and that, despite technology, many jobs continue to require physical presence because the employee must interact directly with people or objects at the worksite. However, the court in its decision recognized that “given the state of modern technology, it is no longer the case that jobs suitable for telecommuting are “extraordinary” or “unusual.”
What does this mean for employers? With technology, telecommuting can be a reasonable accommodation. Many employers have instituted telecommuting policies and although such policies can be a factor in assessing whether telecommuting is a reasonable accommodation, this case highlights that telecommuting may be a reasonable accommodation even if it does not fit within the established policy. Employers should analyze each position and accommodation request carefully. Regardless of whether a requested accommodation of telecommuting is reasonable, employers cannot simply ignore an employee’s request for an accommodation. Even if a request is not reasonable, employers must engage in the interactive process to determine if a modified telecommuting arrangement or some other accommodation is reasonable.