Why it matters: Telecommuting may constitute a reasonable accommodation under the Americans with Disabilities Act, the 6th U.S. Circuit Court of Appeals determined, even where an employer contends the job requires regular attendance at the workplace. Due to advances in technology, “attendance” is no longer synonymous with an employee’s physical presence in the workplace, the panel majority wrote, even if the employee’s job required some face-to-face interactions. Much of the work performed by the plaintiff – who suffered from a serious case of irritable bowel syndrome – could be conducted over the phone or by videoconference, the court found, reversing summary judgment for the employer. In a scathing dissent, one panel member argued that the plaintiff’s personal opinion that she could get her work done by telecommuting should not be enough to sway the court, cautioning that the majority’s opinion would have a significant impact on employers. At a minimum, the decision demonstrates that courts are willing to find telecommuting to be a reasonable accommodation, putting employers on notice for a possible increase in employee requests.

Detailed Discussion

Jane Harris suffered from a severe case of irritable bowel syndrome (IBS) that caused her to soil herself simply when standing up. She asked her employer, Ford Motor Company, whether she could work from home up to four days a week.

Ford declined Harris’s request, stating that four days of working from home was not possible for her job as a resale steel buyer. The position necessitated face-to-face interactions, the company said, and its business judgment was that e-mail or teleconferencing was an insufficient substitute for in-person team problem solving. Ford suggested alternative accommodations that Harris refused.

After she was terminated for failing to meet certain objectives, Harris filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC). The agency then filed suit against Ford, alleging the company violated the ADA by failing to accommodate Harris’s disability.

The EEOC took the position that Harris was otherwise qualified for her position if Ford eliminated the requirement that she be physically present at Ford facilities or allowed a telecommuting accommodation.

The 6th Circuit agreed, finding that Harris’s physical presence was not an essential requirement of her job and that the telecommuting arrangement would not create an undue hardship for Ford.

“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,” the panel wrote. “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.”

In Harris’s case, the court disagreed with Ford that physical attendance was critical to the group dynamic of the team, and was “not persuaded that positions that require a great deal of teamwork are inherently unsuitable to telecommuting arrangements.” Harris did need to conduct occasional site visits with steel suppliers, the court acknowledged, but could do so even if she worked primarily from her home.

Alternatively, the panel also found the EEOC demonstrated Harris was qualified for her job with a telecommuting accommodation. The agency presented evidence that any past issues with attendance were related to IBS flare-ups and that other employees were allowed to work from home, albeit on a limited basis.

Although Harris initially requested up to four days working at home, the court said Ford should have done a better job engaging in an interactive process. The company offered two alternatives (moving Harris’s cubicle closer to the bathroom and offering her an alternate position more suited to telecommuting) that the court dismissed as inadequate.

The majority did try to limit its stance by clarifying that “we are not rejecting the long line of precedent recognizing predictable attendance as an essential function of most jobs. Nor are we claiming that, because technology has advanced, most modern jobs are amenable to remote work arrangements.” Many jobs continue to require physical presence, the court acknowledged, but “given the state of modern technology, it is no longer the case that jobs suitable for telecommuting are ‘extraordinary’ or ‘unusual.’”

A dissenting opinion characterized the majority’s decision as “regrettable,” writing that Ford offered “overwhelming evidence” to support its business judgment that Harris’s position required face-to-face interactions and regular work attendance. The dissent also expressed concern about the impact of the court’s holding.

“[T]he lesson for companies from this case is that, if you have a telecommuting policy, you have to let every employee use it to its full extent, even under unequal circumstances, even when it harms your business operations, because if you fail to do so, you could be in violation of the law,” the judge said. “Of course, companies will respond to this case by tightening their telecommuting policies in order to avoid legal liability, and countless employees who benefit from generous telecommuting policies will be adversely affected by the limited flexibility.”

To read the decision in EEOC v. Ford Motor Company, click here.