Until recently, employers were fairly confident that under the Americans with Disabilities Act (“ADA"), except in extraordinary circumstances, an employer had no obligation to accommodate an employee’s disability by allowing him/her to work from home. Based upon existing precedent, the following principles seemed well established:
- Attending work on a regular, predictable schedule is an essential function of a job.
- Excessive absenteeism renders an individual unqualified under the ADA as a matter of law, except in the unusual case where an employee can perform all work-related duties at home.
- An employer need not accommodate erratic or unreliable attendance.
- The courts must consider the employer’s business judgment when determining the essential functions of the job.
Based upon what the Sixth Circuit Court of Appeals recently described as an “advancement of technology,” each of these principles is now under attack. Equal Employment Opportunity Commission v. Ford Motor Company, Sixth Circuit No. 12-2484 (2014) (“EEOC v. Ford” or “Ford”).
In EEOC v. Ford, the Charging Party, Ms. Harris, was terminated from her position as a resale steel buyer at Ford after she asked to telecommute from home up to four (4) days a week in an attempt to control the symptoms of irritable bowel syndrome (“IBS”). In rejecting this accommodation request, Ford argued: (1) that the essence of the buyer’s job was group problem-solving which required that a buyer be available to interact with members of the resale team, suppliers, and others in the Ford system; and, (2) in its “business judgment” such meetings were most effectively handled face-to-face. Email or teleconferencing options were perceived as insufficient substitutes for in-person problem solving.
Significantly, Ford’s existing telecommuting policy provides that “authorized” employees may work up to four (4) days per week from a telecommuting site, but specifically cautions that such arrangements are not appropriate for all jobs, employees, work environments, or even managers. Prior to Ms. Harris’ request, several buyers had been authorized to telecommute one (1) day per week.
The District Court for the Eastern District of Michigan granted summary judgment in favor of Ford, finding that Harris was not a “qualified” individual on the basis of her excessive absenteeism. The Court declined to second-guess Ford’s business judgment regarding the essential functions of the job, and concluded that the request to telecommute for up to four (4) days per week was unreasonable. In doing so, the District Court relied on existing precedent, including Smith v. Ameritech, 129 F.3d 857, 867 (6th Cir. 1997).
On appeal, the Sixth Circuit reversed the District Court and remanded the case for further proceedings.
In its decision, the Sixth Circuit affirmed the current standard under ADA:
(1) The plaintiff bears the burden of establishing that he or she is disabled. (2) The plaintiff bears the burden of establishing that he or she is “otherwise qualified” for the position despite his or her disability: (a) without accommodation for the employer; (b) with an alleged “essential” job requirement eliminated; or (c) with a proposed reasonable accommodation. (3) The employer will bear the burden of proving that a challenged job criterion is essential; and therefore a business necessity, or that a proposed accommodation will impose an undue hardship upon the employer.
But the Court went on to reverse the District Court’s decision and reached two conclusions: (1) that the Charging Party’s physical-presence at the work site was not an “essential” job requirement; and, (2) that a request to work by telecommuting can be reasonable.
Essential Requirement Of The Job
While recognizing the precedent of Smith v. Ameritech, as well as recognizing that for many positions, regular attendance at the work place is undoubtedly essential, the Court chose to ignore this precedent on the basis of “new” technology, stating:
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 that an employee can perform her job duties. Thus, the vital question in this case is not whether “attendance” was an essential job function for a resale buyer, but whether physical presence at the Ford facilities was truly essential. (emphasis added).
In making this determination, the Court stated that it would consider written job descriptions, the business judgment of the employer, the amount of time spent performing the function, and the work experiences of past and present employees in the same or similar positions. The Court was particularly persuaded by the EEOC’s argument that even when Ms. Harris was present at Ford facilities, the “vast majority” of communications and interactions with both internal and external employees was accomplished through conference call, and that Ms. Harris’ job did not actually require face-to-face interactions with clients.
With respect to the EEOC’s alternative argument, that the request to telecommute for up to four (4) days a week was a reasonable request, the Court conceded that it was an “unusual” case where an employee can “effectively perform all work related duties at home.” However, the Court went on to criticize Ford, indicating that in the circumstances of this case “it was Ford’s responsibility to engage in an interactive process to explore reasonable alternatives.”
In summarizing the scope of this new ruling, the Court stated:
It is important, at this juncture, to clarify that we are not rejecting the long line of precedent recognizing predictable attendance as an essential function of most jobs.
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We are merely recognizing that, given the state of modern technology, it is no longer the case that jobs suitable for telecommuting are “extraordinary” or “unusual.”
Indeed, it now appears that the Court will assume in “modern life,” the “workplace” is “anywhere that an employee can perform her job duties.” While it is still early to predict the outcome of this case on remand, or whether this case will survive criticism from future Sixth Circuit panels, or from other Circuit Courts, Employers should be cognizant of at least two principles. First, recognize that where critical meetings are conducted internally, but with attendance accomplished routinely through conference calls and video conferencing, the chance that an employee may request to work at home as an accommodation will increase dramatically. Second, where the employer and the employee are engaged in the interactive process, it is critical that the employer attempt to reach a compromise that is acceptable to both the employee and the organization.