The Sixth Circuit recently held in EEOC v. Ford Motor Co. that regular attendance may not mean physical presence in the workplace, and that telecommuting may be a reasonable accommodation for some employees with disabilities under the Americans with Disabilities Act ("ADA"). This case provides yet another cautionary tale for employers wrestling with complex ADA accommodation issues.
Irritable Bowel Syndrome Makes It Hard To Be At Work--Can Telecommuting Be The Answer?
Jane Harris had worked at Ford since 2003 as a resale buyer, acting as an intermediary to ensure there was no gap in steel supply to parts manufacturers. Although the job duties included such tasks as updating spreadsheets and making site visits, the main function of the job was group problem-solving, which required communication and collaboration with the resale team and others in the supply chain. Harris’ managers determined that such interactions were best handled face-to-face.
Harris suffered from irritable bowel syndrome, which caused fecal incontinence, and began taking intermittent FMLA leave when her symptoms flared up. Her job performance suffered after she began to take leave. Harris was unable to establish consistent working hours, and frequently made mistakes because she could not access suppliers while working nights and weekends. Her co-workers and manager were forced to pick up some of the slack. Eventually, in February 2009, she formally requested that she be permitted to telecommute on an as-needed basis to accommodate her disability. Although Ford had a policy permitting telecommuting up to four days a week, the policy also stated that such an arrangement was not appropriate for all positions or managers. However, some of Harris’ counterparts telecommuted one day a week.
Ford denied Harris’ request, and offered alternative accommodations including a cubicle closer to the restroom and the option of looking for a different, more telecommuting-friendly job within the company. Harris filed a discrimination charge with the EEOC and shortly thereafter was given a poor performance review and placed on a Performance Enhancement Plan. After failing to meet the goals set forth in the plan, Harris was terminated.
Harris filed a lawsuit, alleging that Ford violated the ADA by failing to accommodate her disability. The lower court granted summary judgment in Ford’s favor, and Harris appealed. The Sixth Circuit reversed the ruling, and found that Harris’ case should proceed to trial.
Sixth Circuit Answers: Yes!
The Court began by noting that the ADA requires employers to make reasonable accommodations for an “otherwise qualified” employee with a disability. The Court found that Harris could be “otherwise qualified” for two reasons. First, Harris would be qualified if Ford removed the requirement that she be physically present at work. Although Ford argued that her consistent presence at its work site was an “essential function” of the job (a position that has been upheld in other cases, including a Ninth Circuit case we blogged about two years ago), the Court found there was insufficient evidence on this point. In doing so, the Court noted that given technological advances, regular attendance did not necessarily mean being present at the employer’s “brick-and-mortar location.” The Court accepted Harris’ contention that most of her communications took place over conference call, even when she was physically present at Ford, and also noted the telecommuting policy that permitted Harris’ counterparts to work remotely (albeit less frequently than what Harris was requesting).
The Court also found that Harris would be qualified if Ford granted her the reasonable accommodation of a telecommuting arrangement. The Court rejected Ford’s argument that such an arrangement would prevent Harris from interacting with others during business hours, noting that she could still maintain a predictable, mutually agreeable schedule on a remote basis. The Court again cited technological advances, stating that “the class of cases in which an employee can fulfill all requirements of the job while working remotely has greatly expanded.”
What Employers Need To Watch Out For
So what does the decision mean for employers? Undoubtedly, it provides some leverage for would-be plaintiffs seeking telecommuting arrangements as a reasonable accommodation in the workplace. The EEOC’s pursuit of the lawsuit also suggests that it will continue to closely scrutinize employer denials of telecommuting requests.
But the Court did not find, however, that employers were always required to acquiesce to telecommuting demands. Instead, the decision is a good reminder that employers should tread carefully when considering accommodation requests, and above all perform the "individualized assessment" of each employee in each case that is required under the ADA's interactive process. That process should include a fundamental (re)examination of job requirements to see whether they really are "essential," and should not dismiss accommodation requests involving telecommuting or similar alternative arrangements out of hand. Instead, employers must consider the impact that technology might have on an employee’s ability to perform the essential functions of his or her position remotely. If, after engaging in that detailed review, you think a particular employee accommodation request is unreasonable, the reasons for denying the request should be well-articulated and meaningful alternatives should be offered.
Employers should also conduct a periodic check of their telecommuting policies. This means not only ensuring that boundaries for use and approval are clearly articulated in the policy itself, but also ensuring that all employees are actually working within the confines of the policy. Courts in these types of cases will undoubtedly want to know whether other employees are allowed to telecommute, and whether anyone has (whether formally or informally) been allowed to deviate or go beyond what is explicitly stated in the policy. Employers are more likely to lose these cases if they deny an employee’s request to telecommute while simultaneously allowing others to do it (perhaps in excess of what the written policy provides).
Employers got some relief from a situation that is becoming more and more common: an employee that claims a scent allergy and wants a work accommodation. In Core v. Champaign County Board of County Commissioners, Case No. 3:11-cv-166 (S.D. Ohio Oct. 17, 2012), plaintiff claimed she was allergic to a particular scent that substantially limited her breathing and requested, as an accommodation, that her employer institute a policy requesting that all employees refrain from wearing scented products of any kind. The U.S. Court for the Southern District of Ohio threw the case out, concluding that (1) plaintiff was not disabled, as that term was used under the pre-2009 amendments to the Americans with Disabilities Act; and (2) even if the broader post-2009 definition of “disability” were used, plaintiff’s requested accommodation was not reasonable.
Plaintiff worked for the Champaign County Department of Jobs and Family Services as a social service worker. Her job required her to conduct onsite inspections of childcare facilities, interact with the public and clients both onsite and offsite, and perform in-house client interviews, among other things. She claimed a disability because one particular scent she encountered occasionally in the workplace—Japanese Cherry Blossom—triggered asthma attacks, which substantially limited the major life activity of breathing. (She claimed reactions to other scents, too, but those reactions only included headaches and nausea, which the court found had no impact on plaintiff’s breathing or on any other major life activity.)
Allergy to Specific Perfume Not a Disability
The court, applying the pre-amendment definition of “disability,” concluded that plaintiff’s reaction to Japanese Cherry Blossom did not substantially limit her breathing because, among other things, she encountered it so rarely, and plaintiff admitted she was still able to perform the essential functions of her job even when exposed. The court acknowledged that, after January 1, 2009, the relevant inquiry is whether the asthma substantially limits plaintiff’s breathing when she is having an attack, rather than examining whether her breathing is substantially limited generally. But the court did not reach the issue of whether the amended standard would entitle plaintiff to relief because it concluded her requested accommodation was unreasonable.
Fragrance-Free Workplace Request an Unreasonable Accommodation
The court noted that, in the Sixth Circuit (encompassing Ohio, Michigan, Kentucky, and Tennessee), an accommodation requiring a fragrance-free workplace is objectively unreasonable. The court emphasized that it would be unreasonable to require employees to “alter all of their personal habits to ensure that all products of daily living, i.e., deodorant, lotions, hair products, etc., used in their private homes before coming into the workplace, are fragrant-free.” Moreover, plaintiff’s request that all fragrances be banned was not reasonable because she only alleged having breathing difficulty in response to one fragrance. Notably, her employer had offered her a wide array of accommodations—including allowing plaintiff to use an inhaler and take breaks, and circulating an email to all employees requesting that they refrain from wearing Japanese Cherry Blossom—all of which plaintiff inexplicably rejected.
What Does This Mean for You?
Employers should be cautious in relying on this decision. Because of the timing of the plaintiff’s claims, the court applied the pre-amendment definition of “disability.” An employee after January 1, 2009, who can demonstrate a substantial breathing impairment when encountering a particular scent can probably establish that he or she is disabled under the ADA Amendments Act. But that does not mean that employers are going to have to declare their businesses fragrance-free. The Sixth Circuit, at least, has declared such accommodations facially unreasonable; there does not yet appear to be any law in the Ninth Circuit on this issue.
So what should you do? When an employee complains about scents in the workplace, it is incumbent on the employer to gather as much information as possible. What scents trigger an episode? (This will help determine whether the employee has broad allergies/sensitivities that may require a broader response or has narrower allergies/sensitivities like the plaintiff in Core.) What happens when the employee encounters those scents? (If the reaction is headache and nausea, this may not qualify as a disability or may require very minor accommodations; if the reaction is anaphylactic shock, you can bet on probably having to find some accommodation(!).) If necessary, request that the employee provide medical verification of the allergy/sensitivity and its severity. Importantly, like the employer did in Core, talk to the employee about what might ameliorate the problem. The plaintiff in Core made the mistake of rejecting every accommodation offered—accommodations the court later concluded were all reasonable. Will a fan suffice? Can the employee be moved to a different work station? Will the job requirements permit the employee to work remotely part of the time? Are additional breaks to get fresh air adequate? The bottom line: Ask questions and get as much detail as possible.
As always, each case will depend on the particular circumstances. Note that the employer here was prepared to request (though not require) employees to not wear the particular scent to which plaintiff alleged an allergy. The court specifically declared that offer reasonable—though it did not say that kind of accommodation would have been required. Different facts—for example, an employee with broader scent allergies than the one particular scent at issue here—could well lead to a court concluding broader scent prohibitions are reasonable and necessary. All we can do is hold our breath and wait.
This week the federal Ninth Circuit Court of Appeals provided some help to employers seeking to balance the need to accommodate disabled employees with the need to enforce regular attendance policies. In Samper v. Providence St Vincent Medical Ctr, the Ninth Circuit held that the Americans with Disabilities Act (“ADA”) did not require an Oregon hospital to exempt a neo-natal intensive care unit (“NICU”) nurse, whose fibromyalgia caused frequent absences, from its attendance policy. The case helps illustrate both when employers should be flexible in accommodating disabilities that could affect attendance, and also when they may be entitled to require stricter adherence to attendance policies.
The Facts Of Samper
The defendant in Samper, St. Vincent Hospital in Portland, Oregon, had little trouble demonstrating that strict adherence to its attendance policy was essential for NICU nurses, who care for a very vulnerable patients, need to be in the NICU to do their jobs, and must be able to respond quickly in emergency situations. The NICU nurse job description specifically identified attendance as an essential job requirement. Further, NICU nurses have specialized training making it more difficult to find replacements during absences. And despite the need for good attendance, the hospital policy nevertheless “generous[ly]” allowed nurses up to five unexcused absences per year.
The plaintiff, Ms. Samper, worked as a part-time NICU nurse since about 2000. From early on, she was disciplined or received multiple poor performance reviews in part because of unexcused absences in excess of the policy's 5-day per year limit. In 2005, she began suffering from fibromyalgia, which caused more absences. St. Vincent initially was able to accommodate her disability; first, it allowed her to call in on bad days and move her shift to another day. Later, it adjusted her schedule so she would not work on consecutive days. The hospital also provided Samper numerous extended leaves of absence, including for personal reasons unrelated to her disability. Ultimately, however, in 2008 St. Vincent terminated Ms. Samper’s employment for, among other reasons, her continued unexcused absences in excess of the policy. Ms. Samper sued, claiming in part that the hospital failed to reasonably accommodate her disability by not exempting her altogether from the 5-day limit under the attendance policy.
The Ninth Circuit found that her Ms. Samper’s request to be exempted from the attendance policy was not a reasonable accommodation as a matter of law. In reaching its conclusion, the Court first noted that the hospital’s written job description stated in several places that attendance and punctuality were essential functions. The Court also surveyed a number of other cases where courts found attendance to be an essential function, such as where employees must work in a team with other employees, where they regularly must interact with customers or clients (such as teachers and airline ticket agents), or are required to be on-site to work with special equipment (such as in a manufacturing environment). Ultimately, the Court found that attendance for NICU nurses was even more essential than in any of those other situations, considering the importance of their “specialized, life-saving work” and the difficulty of finding replacements due to the specialized training NICU nurses receive.
When Is Attendance An Essential Function Under the ADA?
The reasoning in Samper probably provides a mixed bag for other employers trying to balance attendance and accommodation needs. On the one hand, the case provides a ringing endorsement for the general principle that attendance can be an essential function of most jobs, absent evidence it is not, in fact, necessary. Indeed, the Court stated as a general “rule” and matter of “common sense” that: “Except in the unusual case where an employee can effectively perform all work-related duties at home, an employee who does not come to work cannot perform any of his job functions, essential or otherwise.” (emphasis added)
On the other hand, the detailed discussion of the facts and overall subtext of the case suggest that the court’s holding may not be as broad as employers might hope. For example, the fact that NICU nurses provide care to vulnerable infants fighting for their lives probably helped tip things in the hospital’s favor; few other jobs will be able to demonstrate such urgency. In addition, for positions that don’t require as much specialized training as NICU nurses, attendance may be less essential if the employer can more easily find qualified replacements on short notice when a disabled employee is absent.
Perhaps most importantly, the hospital demonstrated flexibility in applying its attendance policy and had a demonstrated track record in accommodating Ms. Samper in the past. It did not enforce its attendance policy too strictly; instead, it allowed up to five unexcused absences per year. In addition, the hospital made “Herculean” attempts to accommodate Ms. Samper over a nearly eight-year period, including allowing absences in excess of the policy, providing numerous leaves of absence, and adjusting her schedule several times. The Court only found that her final request—to be exempted from the attendance policies altogether—was unreasonable. While those efforts are technically distinct from whether attendance is an essential function of a job, the Court obviously believed the hospital had already bent over backwards repeatedly to try to accommodate Ms. Samper. Had the hospital terminated her employment for a first time attendance violation or without the accommodation history, the case could have come out differently. In that sense, Samper could serve as a reminder that employers often cannot do enough to engage in the interactive process and attempt accommodation where reasonable.