We hope you found this information of value. Please do not hesitate to contact Holman HR with any questions you may have.
Technology Advances Require Another Look at Telecommuting as Reasonable Accomodation
By Roberta Fields The U.S. 6th Circuit Court of Appeals recently revived an Americans with Disabilities Act (ADA) suit filed on behalf of an ex-Ford Motor Company worker, showing that courts are warning employers to be aware that telecommuting is acceptable under appropriate circumstances as an ADA accommodation. As a result of the decision, more employees are likely to ask to work from home. Attendance May No Longer Mean Showing Up Jane Harris worked for Ford Motor Company as a resale steel buyer from 2003 to 2009. Throughout the entire period of her employment, she suffered from irritable bowel syndrome (IBS), an illness that causes fecal incontinence. In her job, Harris served as an intermediary between steel suppliers and companies that use steel to produce parts for Ford to ensure no gaps in the supply. Although the position involved individual tasks such as updating spreadsheets and periodic site visits, the essence of the job was group problem solving, which Ford contended required the buyer to be available to interact with members of the resale team, suppliers, and others. Throughout her employment, Harris received generally adequate performance reviews, although in 2007 and 2008, she received the lowest contribution assessment level, placing her in the bottom percentage of employees in her group. Over time, Harris’ symptoms from IBS worsened, and on bad days, she would be unable to drive or even stand up from her desk without soiling herself. Her supervisor unofficially allowed her to work a flextime telecommuting schedule on a trial basis. The supervisor deemed the trial unsuccessful because Harris was unable to establish regular and consistent work hours. In an effort to make up the work, she worked nights and weekends, but when she did, she made mistakes and missed deadlines because she lacked access to information from suppliers. In February 2009, Harris formally requested that she be permitted to telecommute on an “as needed basis as an accommodation for her disability.” Ford had a policy that authorized employees to work up to four day per week from a telecommuting site. The policy provided that all salaried employees were eligible to apply but specifically stated that such arrangements weren’t appropriate for some jobs. Under the policy, other resale buyers telecommuted one scheduled day a week. Harris’ supervisors determined telecommuting wouldn’t be available to her four days a week because e-mail and teleconferencing were insufficient substitutes for in-person team problem solving. An HR representative suggested alternative accommodations, including moving Harris’ cubicle closer to the restroom or seeking another job within Ford that was appropriate for telecommuting. Harris rejected those options. She ultimately was put on a performance enhancement plan (PEP) and was terminated when she failed to meet the PEP’s objectives. Harris filed a discrimination charge with the Equal Employment Opportunity Commission (EEOC), which took on the case on her behalf. The district court found that her request to telecommute four days a week wasn’t a reasonable accommodation and declined to second-guess the employer’s business judgment regarding the essential functions of the job. The EEOC appealed. Sixth Circuit Reverses, Citing Advances in Technology The dispute in the case centered on whether Harris was “otherwise qualified” for her position, as she was clearly disabled. Harris presented evidence that she was qualified on two alternative bases: 1. If the requirement to be physically present was eliminated; or 2. If telecommuting was permitted as an accommodation. The burden then shifted to Ford to prove that either the physical presence requirement was an essential function or telecommuting would create an undue hardship. While noting earlier cases holding otherwise, the 6th Circuit said attendance at the workplace could no longer be assumed to mean attendance at the physical location. Given advances in technology, the workplace may be anywhere an employee can perform job duties. Under this analysis, the question wasn’t whether attendance was an essential job function but whether physical presence at Ford was essential. Ford argued Harris had to be available during working hours to interact with others and access information. However, the court noted that the vast majority of communications with internal and external stakeholders was done via conference call and that other resale buyers were permitted to telecommute one day a week. As a result, the court found that telecommuting was a reasonable accommodation in this case. The court stated the problem wasn’t telecommuting but being available during core business hours. Ford’s final argument was that Harris wasn’t “otherwise qualified” because she rejected its alternative reasonable accommodations. The court disagreed. Ford wasn’t entitled to force Harris to accept an alternative position or other reasonable accommodations because telecommuting as proposed by Harris was a reasonable means of accommodating her disability. The burden shifted to Ford to show such an accommodation would prove an undue hardship. The company couldn’t do that, considering its financial resources and that its written policy was to absorb costs for employees approved to telecommute. Advice to Employers This decision rejects the presumption that the workplace is the employer’s physical worksite and rejects any automatic deference given to an employer’s business judgment with respect to which functions of a job are essential. Prior cases have declined to second-guess the employer’s business judgment on a job’s essential functions, routinely deferring to employers because a court isn’t designed to serve as a “super personnel department.” You should take employee requests to telecommute seriously and evaluate them on a case-by-case basis considering technology and what does and doesn’t work for the job at issue. Remember, you’re required to participate in an interactive process with employees who request an accommodation, which means seriously considering all options, including those suggested by the employee. Additionally, you should review your telecommuting policies to decide if this is something you want to continue to offer or offer on the terms currently allowed. Finally, job descriptions should be reviewed and updated to make clear if being physically present in the workplace is an essential part of the job.