Telecommuting—A Reasonable Accommodation?
Can an employee request the ability to work from home as a reasonable accommodation? And how easy is it for an employer to demonstrate that an employee’s physical presence in the workplace is required? In a world in which telecommuting is becoming ever more prevalent, yet companies still maintain that they benefit greatly from employees’ face to face interactions with both their coworkers and customers, these are difficult questions for employers. In its recent decision in EEOC v. Ford Motor Company, No. 12-2484 (April 22, 2014), the Sixth Circuit Court of Appeals addressed these complex issues, reversing the district court’s decision awarding summary judgment to Ford and finding that the EEOC had created a genuine issue of material fact as to whether the employee was otherwise qualified for the position where she was unable to be physically present in the workplace at all times due to a disability and had also created a genuine issue of material fact as to whether she was improperly terminated in retaliation for exercising her rights under the ADA.
Jane Harris was a resale buyer at Ford, serving as an intermediary between steel suppliers and the companies that use steel to produce parts for Ford. The position involved both individual tasks and group problem-solving. According to Ford, the meetings that were required were most effectively handled face-to-face and email and teleconferencing were not a sufficient substitute. Harris suffered from irritable bowel syndrome (“IBS”). Harris had fairly severe symptoms and at some point, began taking intermittent FMLA leave because of it. Her absences began affecting her job. In 2005, her supervisor tried to allow her to work on a flex-time telecommuting schedule. However, the supervisor ultimately determined that this arrangement did not work because Harris was unable to establish regular and consistent work hours. Because of her absences, Harris did work from home on an informal basis, including nights and weekends. However, there were issues wither working outside of core business hours because she couldn’t engage in team problem-solving and had trouble accessing suppliers to obtain information needed. This caused Harris to make mistakes and caused more work for co-workers at times.
In 2009, Harris formally requested that she be permitted to telecommute on an as-needed basis as an accommodation for her disability. Ford had a telecommuting policy that authorized employees to work up to four days a week from a telecommuting site, but specifically provided that such arrangements are not appropriate for all jobs, employees, work environments, and managers. Ultimately, based on the job requirements, Harris’s supervisors determined that her position was not suitable to telecommuting and denied her request. Ford did offer other accommodations, including moving Harris’s cubical closer to the restroom or looking for another job for her within Ford that would be more suitable for telecommuting, but these were rejected by Harris. Harris filed a charge of discrimination with the EEOC in 2009. A few weeks later, she was placed on Workplace Guidelines because of continuing issues with her performance and later a 30-day Performance Enhancement Plan. At the end of the 30 days, Harris was terminated.
The EEOC filed suit against Ford, alleging that Ford violated the ADA by failing to accommodate Harris’s disability and retaliating against her for filing a charge with the EEOC. Ford moved for summary judgment and the district court granted it, finding that Harris was not a qualified individual under the ADA on the basis of her excessive absenteeism and so could not prevail on the failure to accommodate claim and that the EEOC could not establish that Harris’s low performance reviews, placement on the PEP, and termination were retaliatory because these decisions were based on performance issues unrelated to Harris’s disability. The Sixth Circuit reversed.
The main dispute as to the failure to accommodate claim was whether Harris was “otherwise qualified” for her position. Harris argued that she was qualified for the position if the requirement that she be physically present at the Ford facilities was eliminated. The Sixth Circuit explained that because the EEOC could demonstrate that Harris was qualified if the physical attendance requirement was not considered, the burden shifted to Ford to prove that physical presence in the workplace is an essential function and that Ford could not indisputably carry that burden. Ford, p. 9. The Sixth Circuit discussed the fact that attendance at the workplace is “undoubtedly essential.” Id. However, the Sixth Circuit explained,
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 than an employee can perform her job duties.
Id., pp. 9-10. The Sixth Circuit further recognized that other circuits had found that physical presence at an employer’s facility may be an essential function for some positions that require extensive teamwork, but ultimately concluded that they were “not persuaded that positions that require a great deal of teamwork are inherently unsuitable to telecommuting arrangements.” Id., p. 11. The Sixth Circuit concluded that even though Ford had provided significant evidence that physical attendance was an essential function of the position, the EEOC offered at least enough evidence to overcome summary judgment.
The Sixth Circuit also ruled that the EEOC has presented sufficient evidence as overcome summary judgment as to whether Harris was qualified for the position with the reasonable accommodation for her disability, a telecommuting arrangement. The Sixth Circuit pointed out that many of Ford’s arguments went to issues with a flex-time arrangement, such as the necessity of interacting with other team members and accessing information unavailable during non-business hours. But, Harris was seeking only to work from home during regular business hours. The Sixth Circuit also pointed out that Ford argued that telecommuting was not a reasonable accommodation because she was requesting to telecommute a large portion of the week, yet Harris was willing to discuss alternative accommodations, including telecommuting only one or two days a week, and there was no discussion as to these options. The Sixth Circuit also explained that Ford could not use Harris’s past attendance issues related to her disability as a basis to deny her accommodation request. Id., p. 16.
The Sixth Circuit also found that the EEOC had asserted sufficient evidence of retaliation to defeat summary judgment, pointing out that many of the performance deficiencies relied upon by Ford were ongoing problems, yet prompted a negative review only after Harris filed her EEOC charge. Id., p. 21.