Many employers provide certain employees with an option to work remotely. The Sixth Circuit Court of Appeals (covering Ohio, Kentucky, Michigan and Tennessee), in EEOC v. Ford Motor Company, recently ruled that telecommuting may not just be an option employers can offer as a benefit to employees. Instead, it may be a required reasonable accommodation under the Americans with Disabilities Act (“ADA”). This decision has turned the traditional assumptions of the “brick and mortar” workplace sideways.
Jane Harris, a resale steel buyer, requested telecommuting as an accommodation for her medical condition. Her job included site visits, inputting information into spreadsheets, and in-person interactions with resale team members, suppliers and other Ford employees. At times, her condition prevented her from being present in the workplace.
Ms. Harris requested permission to telecommute four days a week as an accommodation. Ford’s telecommuting policy permitted certain employees to work up to four days per week at home. That policy noted telecommuting was not appropriate for “all jobs, employees, work environments or even managers.” Ford denied her request because, in its business judgment, it determined the position was not suitable to telecommuting. Instead, Ford offered several alternative accommodations, which Ms. Harris rejected.
The EEOC sued Ford under the ADA for failing to accommodate Harris’s disability and for retaliation against her for filing an EEOC charge. The trial court ruled in Ford’s favor. The federal appellate court reversed – sending the case back to the trial court.
As the dissenting opinion explained, the Ford Court essentially determined that a telecommuting arrangement permitting an employee to work from home four days per week on a spur-of-the-moment, unpredictable basis is a reasonable accommodation under the ADA for a position that involved routine face-to-face interactions. In rendering its decision, the Court set forth the following rationale:
- Because of modern technology, attendance in the workplace can no longer be assumed to mean attendance at the employer’s physical location.
- Rather, the workplace is anywhere that an employee can perform her job duties.
- The issue is not whether “attendance” was an essential job function for that buyer position, but whether physical presence at the workplace was truly essential. That inquiry is a “highly fact specific” question.
- The Court will consider several factors including job descriptions, the employer’s business judgment, the amount of time spent performing the function, and the work experience of those employees in the same or similar position. The employer’s business judgment was not afforded the traditional deference routinely granted employers in past cases.
The Court, however, noted it was not rejecting prior case law precedent recognizing that predictable attendance is an essential function of most jobs. It also did not broadly claim that most jobs are amenable to remote work at home arrangements with current technology. Instead, the Court recognized jobs no longer need to be “unusual” or “extraordinary” to accommodate telecommuting in today’s state of modern technology.
Employers now should exercise caution and seriously consider telecommuting requests. When an employee’s disability prevents him or her from being physically present in the workplace, but does not affect his or her ability to work normal business hours, the employer cannot just reflexively say “no.”
Employers can no longer expect courts to simply defer to their business judgment that physical presence is an essential job function. Instead, employers will need to objectively demonstrate why physical presence is required and not just subjectively preferred (e.g., value of face-to-face interaction; teamwork; collegiality). Employers should be prepared to provide (and document) the unreasonableness of the telecommute request – under that employee’s particular circumstances. Employers also cannot confidently rely on the lack of a telecommuting policy as a failsafe defense. Under the ADA, a telecommuting request still must be explored – since a modification of certain workplace policies may be a reasonable accommodation.