The Sixth Circuit Court of Appeals recently turned heads with its decision in EEOC v. Ford that held telecommuting may be a reasonable accommodation under the Americans with Disability Act (“ADA”). Several courts previously dispelled such a notion and deferred to the employer’s business judgment as to whether an employee’s physical presence at the worksite was an essential function of the job. In light of the Sixth Circuit’s decision, employers may need to rethink any hard-and-fast policies requiring physical attendance and prohibiting telecommuting as a possible alternative for employees with disabilities.
In 2003, Jane Harris was hired as a resale buyer at Ford, a position that involved intermediating between steel suppliers and the companies that use the steel to produce parts for Ford. Ms. Harris’ position involved some individual tasks, but the essence of the job required Ms. Harris to be available to interact with other members of her team and suppliers when problems arose. Ford management determined that such meetings “were most effectively handled face-to-face and that email or teleconferencing was an insufficient substitute for in-person team problem solving.”
However, Ms. Harris suffered from Irritable Bowel Syndrome (“IBS”), which required her to take intermittent leave under the Family and Medical Leave Act. Ms. Harris’s job performance suffered as a result of these absences, and in February of 2009 she requested that she be permitted to telecommute on an as-needed basis as an accommodation for her disability. Ford’s telecommuting policy authorized employees to work up to four days a week from another location, with the caveat that the policy would not apply to “all jobs, employees, work environments or even managers.”
After discussing her request, Ford’s human resources department suggested several alternative accommodations, including moving Ms. Harris’s cubicle closer to the restroom and finding an alternative position within the company that was more suited to telecommuting. Ms. Harris rejected each of these alternatives and eventually filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”). The EEOC subsequently filed a complaint in federal court, alleging that Ford violated the ADA by failing to accommodate Ms. Harris’s disability and by retaliating against her for filing a charge with the EEOC.
The district court granted summary judgment to Ford, reasoning, in part, that it was not the court’s place to second-guess the employer’s business judgment that Ms. Harris’ presence at work was an essential function of the job. Thus, her request to telecommute for up to four days per week was not a reasonable accommodation. However, the Sixth Circuit Court of Appeals reversed the district court’s decision, essentially upending the well-established deference courts provide to employers in determining whether and employee’s presence at the employer’s physical location is required. The court noted that “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 [his or] her job duties.” Thus, the question became whether the physical presence of the employee was an essential function of the job. The court found that because Ms. Harris’s position did not require face-to-face interaction with clients, and the majority of communications with stakeholders were done via conference call, the EEOC had presented enough evidence to survive summary judgment. Furthermore, Ford’s alternatives did not adequately address the symptoms of IBS and the potential for humiliation in front of one’s coworkers that is inherent to the disability.
The Ford decision only stands as binding legal precedent for federal courts within the Sixth Circuit (Kentucky, Michigan, Ohio and Tennessee). However, the decision may prove persuasive in other jurisdictions as well. It may be indicative of a changing landscape where employers can no longer adopt inflexible rules requiring employees to be present at the employer’s physical location for work that may be performed remotely. The dissent warned, perhaps hyperbolically, that:
[T]he lesson for companies from this case is that, if you have a telecommuting policy, you have to let every employee use it to its full extent, even under unequal circumstances, even when it harms your business operations, because if you fail to do so, you could be in violation of the law. Of course, companies will respond to this case by tightening their telecommuting policies in order to avoid legal liability, and countless employees who benefit from generous telecommuting policies will be adversely affected by the limited flexibility.
While the decision may not lead to the parade of horribles the dissent suggests, EEOC v. Ford will certainly provide employees with more bargaining power when requesting reasonable accommodations, and employers cannot prematurely preclude the possibility of allowing an employee to telecommute. Employers should continue to engage in an interactive and communicative process with their employees regarding accommodations under the ADA, and they should further be prepared to justify why the physical presence of the employee is an essential function of the job in the event that a request to telecommute is denied. If you have any questions or concerns regarding telecommuting or other accommodations under the ADA, please do not hesitate to contact your Labor and Employment Counsel at Smith, Gambrell & Russell, LLP.