Recently, the Sixth Circuit Court of Appeals (which has jurisdiction over courts in Kentucky, Michigan, Ohio and Tennessee) held that allowing a disabled employee to telecommute could be a reasonable accommodation under the Americans with Disabilities Act.
In EEOC v. Ford Motor Company (Sixth Circuit, April 22, 2014), a Ford Motor Company employee, Jane Harris, who suffered from Irritable Bowel Syndrome, requested that she be permitted to telecommute on an as-needed basis up to four days a week as an accommodation for her disability. Ford Motor Company met with Ms. Harris to discuss her telecommuting request, but the request was eventually denied. Ms. Harris filed an Equal Employment Opportunity Commission (“EEOC”) charge of discrimination in 2009 and was terminated from employment a few months later.
In determining whether Ford Motor Company had discriminated against Ms. Harris by failing to allow her to telecommute as a reasonable accommodation, the Sixth Circuit Court of Appeals looked at whether Ford Motor Company provided sufficient evidence to prove that physical presence at work was an essential function of her position. The Court acknowledged that, for many positions, regular attendance at the work place is undoubtedly essential. However, the Court also noted that:
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.
After considering several factors, the Court determined that physical presence was not essential to Ms. Harris’s position. In making its decision, the Court noted that, while Ford Motor Company provided evidence of the importance of in-person interactions, Ms. Harris’s position did not actually require face-to-face interactions with clients.
The Court also indicated that, even if physical presence at the work site was an essential function of Ms. Harris’s job, telecommuting was a reasonable accommodation for her disability. Courts, including the Sixth Circuit Court of Appeals, had previously concluded that telecommuting was not a reasonable accommodation for most jobs but that there may be “unusual cases” when telecommuting would be reasonable. However, the Court here stated that, given the state of modern technology, it is no longer the case that jobs suitable for telecommuting are “extraordinary” or “unusual.” Importantly, Ford Motor Company had a policy permitting employees to telecommute up to four days per week, in certain circumstances.
The EEOC has long taken the position that permitting employees to telecommute may be a reasonable accommodation. In fact, since 2005, the EEOC has made available a Work At Home/Telework as a Reasonable Accommodation Fact Sheet, available here, which states that:
Not all persons with disabilities need – or want – to work at home. And not all jobs can be performed at home. But, allowing an employee to work at home may be a reasonable accommodation where the person’s disability prevents successfully performing the job on-site and the job, or parts of the job, can be performed at home without causing significant difficulty or expense.