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).