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Telecommuting Is Reasonable Accommodation Under ADA

By Caitlin M. Gadel  5/15/2014
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[Editor's note: Rehearing en banc was granted Aug. 29, 2014.]

As a reasonable accommodation to a disability, an employer may have to allow an employee to telecommute even if teamwork is an important part of the employee’s job, the 6th U.S. Circuit Court of Appeals ruled, focusing on the idea that technological advances make it less important for employees to be physically present at work.

Jane Harris was hired in 2003 as a resale steel buyer at Ford Motor Co. A resale steel buyer’s main role is to respond to emergency supply situations to ensure that there is no gap in steel supply. The majority of the job requires group problem-solving and interacting with co-workers and suppliers.

Harris suffered from irritable bowel syndrome while working at Ford. As her symptoms worsened, Harris had to miss work, and her absences began to negatively affect her job performance. In 2005, Ford allowed Harris to work a flextime telecommuting schedule on a trial basis. However, the trial was unsuccessful in that Harris missed deadlines because she worked outside of normal work hours and lacked access to information, people and suppliers.

Eventually, Harris formally requested that she be permitted to telecommute on an as-needed basis as an accommodation for her disability. Ford has a policy that allows employees to apply for a telecommuting arrangement but that states such arrangements are not appropriate for all jobs or employees.

Ford determined that Harris’ position was not suitable for telecommuting because group meetings and group problem-solving were best done face to face. Ford did suggest several other accommodations, such as moving Harris’ cubicle closer to the restrooms or seeking another job within Ford more suitable for telecommuting. Harris rejected both of these options.

After receiving a poor performance review, Harris was put on a performance enhancement plan. Harris’ performance did not improve, and Ford terminated her employment. The Equal Employment Opportunity Commission (EEOC) filed a lawsuit alleging that Ford violated the Americans with Disabilities Act (ADA) by failing to accommodate Harris’ disability. The district court determined that Harris was not qualified for the position because of her excessive absenteeism and that Harris’ request was not a reasonable accommodation. The district court granted summary judgment in favor of Ford.

The 6th Circuit reversed the district court’s decision. Harris was disabled under the ADA, the court said, so the dispute centered on whether Harris was qualified for her position, with or without a reasonable accommodation. Cases from the 1990s, which recognize that physical presence is a necessary qualification for most jobs, are not as applicable today because of advances in technology, the court said. Determining if physical presence is essential to a job is a highly fact-specific investigation, the court noted. While Ford believed that face-to-face interaction was preferable, the EEOC offered evidence that face-to-face interaction was not as important as Ford said. Harris stated that even when she was physically present at Ford, most of her work was done via conference call. The 6th Circuit determined that both sides offered enough evidence for there to be a dispute of the facts, making summary judgment inappropriate.

The EEOC also demonstrated that with a reasonable accommodation, Harris was qualified for the resale steel buyer position. Ford argued that Harris needed to interact with other team members and buyers on a regular schedule, which she could not do when telecommuting. Ford’s arguments confused flextime with telecommuting, the court said. Harris wanted to work from home, when needed, but during regular business hours. This did not raise the same business concerns as a flextime schedule. Harris had performance problems when she worked noncore business hours, which was not what she was currently requesting. Furthermore, Ford could not use Harris’ past attendance issues against her because they were related to her disability.

The 6th Circuit deemed Ford’s other accommodation suggestions unreasonable. Ford’s suggestion of moving Harris’ cubicle closer to the bathroom was unreasonable because Harris still might not have time to make it to the restroom. Ford’s offer to reassign Harris was unreasonable because there was no guarantee that a suitable position would be available. Also, Ford could not establish that allowing Harris to telecommute posed an undue hardship on Ford.

The 6th Circuit determined that there was a genuine dispute of the facts regarding whether Harris could perform all of her job duties from a remote location. Therefore, the 6th Circuit reversed the district court’s grant of summary judgment.

The dissent disagreed with the majority, stating that the majority failed to take into account the fact that not all of Harris’ job duties could be performed remotely. For example, Harris was required to conduct in-person supplier visits. The dissent emphasized that other 6th Circuit cases state that if an employee cannot meet the attendance requirements of the job, the employee is not a qualified individual protected by the ADA. The dissent placed a greater emphasis on the testimony of Ford managers and other resale steel buyers who stated that Harris’ working from home created problems. Additionally, the dissent asserted that Harris was not a qualified individual because she rejected Ford’s suggestions of reasonable accommodations.

EEOC v. Ford Motor Co., 6th Cir., No. 12-2484, (April 22, 2014).

Professional Pointer: When an employer is determining if telecommuting is a reasonable accommodation, the employer should try to determine if physical presence is an essential job requirement.

Caitlin M. Gadel is an attorney with Seaton, Peters & Revnew P.A., the Worklaw® Network member firm in Minneapolis.

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