In what could signal a major shift in employer responsibilities under the Americans with Disabilities Act, the Sixth Circuit Court of Appeals held that a former Ford Motor Co. employee with irritable bowel syndrome whose request to telecommute four days per week was denied may proceed to trial on her ADA discrimination and retaliation claims. The case is an important one for Employers who consider an employee's physical presence an essential job requirement.

The employee, Jane Harris, coordinated Ford's steel suppliers and parts producers. The job required group problem-solving, impromptu meetings, and extensive teamwork. Harris asked to telecommute four days per week to accommodate her irritable bowel syndrome. Her supervisors denied the request after concluding that the job could not be performed effectively from home. Ford offered alternative accommodations, including relocating Harris's cubicle, or finding another position at Ford that could be performed from home. Harris refused these offers, and filed a discrimination charge with the Equal Employment Opportunity Commission. Later, she received a negative performance evaluation, and was terminated after failing to meet several performance objectives.

The EEOC sued Ford on Harris's behalf, using the case as a platform to establish or clarify employer obligations to consider telecommuting as an accommodation. The trial court dismissed the case because of Harris's poor job performance, and because of longstanding precedent that courts should not second-guess an employer's business judgment about a job's essential functions. The trial court agreed with Ford that telecommuting four days per week was an unreasonable accommodation, and that Harris's termination was not retaliatory.

On appeal, the Sixth Circuit agreed with the EEOC's argument that the key question was not whether attendance was an essential function of the job, but whether "attendance" requires an employee's physical presence at an employer's facility. Many courts have agreed that an employee's physical presence in the workplace may be an essential function for positions that require extensive teamwork. In the Sixth Circuit's view however, those past cases could not account for how much "the world has changed" and the lengths to which "advancing technology has diminished the necessity of in-person contact to facilitate group conversations."

Essentially, technology may have expanded the definition of "workplace" so that it now may mean any location where an employee can perform the job duties. Whether a job can be done off-site is a fact-specific question, and therefore more suitable for a jury to determine as a question of fact than a judge to decide as a question of law.

This case has the potential to be one of those landmark decisions that sets the standard for years to come. It clearly undermines the old rule that employers have the right to determine a job's essential functions. It may even challenge the common understanding that courts are not suited to function as personnel departments. This issue ? whether an employer can require physical presence in the workplace when there are telecommuting options - may ultimately be decided by the Supreme Court. And though it is not officially binding in the Ninth Circuit, employers should carefully consider requests to work off site when they come from employees with disabilities.

The Sixth Circuit's opinion in Harris v. Ford Motor Co. opinion is available here.