Sixth Circuit Says Telecommuting May Be Required As a Reasonable Accommodation
Determining what is a reasonable accommodation under state or federal disability law can be one of the most complex issues an employer faces when dealing with employees. The guidelines from the Equal Employment Opportunity Commission (“EEOC”), which interpret the Americans with Disabilities Act (“ADA”), suggest that allowing employees to telecommute from home may be a required form of accommodation. For many years, federal courts have seemingly rejected this idea. But on April 22, 2014, the Sixth Circuit Court of Appeals ruled in EEOC v. Ford Motor Company that an employer may be required to allow telecommuting as a reasonable accommodation for a disabled employee.
In the Ford Motor Co. case, Plaintiff Jane Harris worked as a resale buyer for Ford, serving as an intermediary between steel suppliers and parts manufacturers that serve Ford. Her duties focused on group problem solving, and required her to be available to interact with the resale team, suppliers, and others at Ford to help solve problems. Occasionally she also needed to make site visits, as well as complete various types of paperwork and other forms using a computer.
Harris suffered from irritable bowel syndrome (“IBS”), a condition that causes fecal incontinence, and which caused Harris to have many absences from work. As her symptoms worsened over the years, Harris took intermittent FMLA leave. Ford allowed Harris to try telecommuting on a trial basis as Ford had a policy that allowed some employees to telecommute multiple days per week, depending on the job. Some of Harris’s fellow buyers took advantage of this policy from time to time. Harris’s supervisor decided that telecommuting on a more frequent basis was not feasible for Harris as she could not maintain regular attendance. Ford did not allow Harris to continue to telecommute.
Harris then formally requested to telecommute on an as-needed basis as a reasonable accommodation for her IBS. While Ford had allowed other buyers to telecommute at times, Harris’s supervisors said that her position was not suitable for telecommuting and denied her request. Instead, Ford suggested other forms of accommodation, such as switching to a job more suitable for telecommuting, or moving her cubicle closer to the bathroom. Harris rejected those ideas and filed a discrimination charge with the EEOC. While Harris’s performance had previously been viewed as satisfactory in most areas, Ford took several adverse actions against her after she filed her charge, and she was eventually terminated for her alleged poor performance.
After Harris was fired, the EEOC sued on her behalf claiming that Ford violated the ADA by failing to accommodate her disability and by retaliating against her for filing a discrimination charge. The trial court granted Ford’s summary judgment motion and dismissed the lawsuit. On appeal, the Sixth Circuit reversed. The court found that there was at least enough evidence to create a fact dispute for a jury to decide whether Harris was otherwise qualified for her job if Ford eliminated the requirement that she be physically present at work and allow her to telecommute. The court found that Ford failed to show that Harris’s constant physical presence at work was necessarily essential for her to perform her job duties. Importantly, the court noted that technological advancements have allowed more employees to work remotely. Many of Harris’s daily interactions with others were by phone, and she apparently could still perform site visits when needed even if she spent most of her time working from home. Additionally, the court noted that Ford had allowed other buyers to telecommute on a more limited basis.
The court also found that Harris’s request to telecommute was at least arguably reasonable since telecommuting would allow Harris to be at work during regular business hours. Her past attendance problems could not be used as a basis to deny her accommodation request since those absences were related to her disability. The court rejected Ford’s business judgment that it was essential for Harris to be able to interact face-to-face with the various people she worked with in order to effectively do her job. Most importantly, the court determined that Ford could not force Harris to choose one of its suggested alternative arrangements because the court viewed Harris’s request to telecommute as reasonable. It is unknown at this time whether Ford will seek review of this decision from the entire Sixth Circuit, or whether it will seek discretionary review by the United States Supreme Court.
Takeaway: This decision from the Sixth Circuit may turn out to be a watershed moment against employers in failure to accommodate discrimination claims. This decision erodes the idea that an employee’s physical presence in a brick and mortar location is inherently an essential job function since technological advances have made telecommuting a feasible option for at least certain employees to do their jobs. This decision also shows that courts may be less willing to defer to an employer’s business judgment about what jobs are suitable for telecommuting, and that an employer may be forced to accept an employee’s requested accommodation if it is reasonable. Employers that currently allow telecommuting, or have policies on telecommuting, should consider reviewing whether changes to their current policies and practices are necessary. Reasonable accommodation questions involving disabled employees raise many complicated factual and legal issues, and employers would be wise to seek advice of counsel in these types of situations.