This post was contributed by Tony D. Dick, an Attorney in McNees Wallace & Nurick’s Labor & Employment Practice Group in Columbus, Ohio.
Last month, in EEOC v. Ford Motor Company, the Sixth Circuit Court of Appeals (covering Tennessee, Kentucky, Ohio, and Michigan) held for the first time that employers may be required to permit employees to telecommute as a reasonable accommodation for a disability. While the decision is not binding on employers in the Third Circuit (covering Pennsylvania, New Jersey, and Delaware), the case is significant for employers operating in the Sixth Circuit’s jurisdiction and beyond as it clearly signals a willingness to expand the traditional concept of what constitutes an employer’s “workplace” as modern technology continues to evolve.
The plaintiff in the case, Jane Harris, worked as a “resale buyer” for Ford which essentially required her to act as an intermediary between steel suppliers and third-party companies that produced steel parts for Ford. According to Ford, while a significant amount of Ms. Harris’s work time involved communicating with steel suppliers and parts manufacturers over the phone and inputting information in Ford’s computer system, regular face-to-face interaction with other members of the resale team and steel suppliers was a necessary component of the position as well.
Unfortunately, the plaintiff suffered from Irritable Bowel Syndrome (“IBS”) which routinely caused her to experience fecal incontinence and have accidents at work. As a result of her IBS, the plaintiff eventually requested that she be permitted to work from home up to four days a week as an accommodation for her condition. Ford management subsequently determined that Ms. Harris’s request was not reasonable in light of the fact that her position regularly required in-person contact with her fellow employees and Ford clients and denied her request. However, Ford proposed several alternative accommodations, including moving her desk closer to the restrooms and transferring her to another job within the company that would be more suitable for telecommuting. Ms. Harris rejected both of these proposed alternative accommodations and instead filed a charge of discrimination with the EEOC. The EEOC eventually initiated a lawsuit on Ms. Harris’s behalf raising claims of disability discrimination and retaliation in violation of the Americans with Disabilities Act.
Words of Caution for Employers
In reversing the lower court’s grant of summary judgment in favor of Ford, the Sixth Circuit determined that the EEOC presented sufficient evidence that would allow a jury to conclude that Ms. Harris could perform the essential functions of her job from home. Although the Court recognized that regular attendance at the employer’s physical workplace is undoubtedly an essential function of most jobs, due to advances in technology, “attendance” can no longer be assumed to mean an employee’s actual presence at the physical workplace. As the Court noted, “[t]he world has changed since the foundational [federal appeals court] opinions regarding physical presence in the workplace were issued: teleconferencing technologies that most people could not have conceived of in the 1990s are now commonplace. Therefore, we are not persuaded that positions that require a great deal of teamwork are inherently unsuitable to telecommuting arrangements.” The Court went on to hold:
"When we first developed the principle that attendance is an essential requirement of most jobs, technology was such that the workplace and an employer’s brick-and-mortar location were synonymous. However, as 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 the Sixth Circuit’s opinion makes clear, it is no longer the case that jobs suitable for telecommuting are extraordinary or unusual. As a result, employers should be extra cautious when an employee requests telecommuting as a reasonable accommodation and not dismiss the request out of hand. Rather, an employer should use the interactive process to discuss and explore with the employee the aspects of the job that the employer believes could not be performed satisfactorily or would not be workable in a telecommuting context. And, carefully record the employee’s agreement or disagreement with these issues. If the request is rejected, the employer should clearly spell out in writing which specific duties of the job make telecommuting impractical. In addition, employers may want to re-examine their job descriptions to ensure they clearly and accurately articulate how job duties are best carried out.