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Accommodating Telecommuting

The Telecommuting Accommodation Request:

On April 10, 2015, the U.S. Sixth Circuit (Tennessee, Kentucky, Michigan and Ohio) ruled on the reasonable accommodation provisions of the Americans with Disabilities Act (“ADA”).   In a “good news for employers” Appeals Court  for the Sixth Circuit ruled in favor of the employer, rejecting the EEOC’s claim that the employer violated the ADA by not allowing a disabled employee to telecommute as a reasonable accommodation.  In EEOC v. Ford Motor Co., eight judges on the Sixth Circuit ruled in favor of Ford, while five dissented.   As any of you who are using our “SHADES of Harassment” training program for the office environment, you know that the program includes a scene where a disabled employer requests telecommuting as a reasonable accommodation.  This decision highlights many of the issues concerning telecommuting as a potential reasonable accommodation under the ADA.  It also underscores the importance of engaging in a good faith “interactive process” with a disabled employee requesting an accommodation.

Ms. Harris was employed by Ford as a steel “resale buyer.”  Resale buyers act as facilitators between Ford’s steel suppliers and the parts manufacturers.  Ford claimed that the resale buyer position was “highly interactive,” requiring face-to-face interactions at the steel manufacturing site.

Harris suffered from irritable bowel syndrome.  As an accommodation for her condition, she asked to work from home ”as needed” and stated that she may need to work at home up to four days per week.  After several meetings with Harris, Ford advised her that it could not accommodate her telecommuting request because it would prevent her from performing the essential functions of her job.  It offered alternative accommodations, which Harris rejected.  Harris then filed a charge of disability discrimination with the EEOC, and the EEOC sued on her behalf.

In September 2012, the local court granted Ford’s motion for summary judgment, concluding that working from home up to four days per week was not a reasonable accommodation under the ADA.  On April 10, 2015, the Court affirmed summary judgment for Ford.

The Court’s Analysis of Telecommuting as a Reasonable Accommodation

Reviewing the record in the case, the majority of the Sixth Circuit’s panel concluded that “regular and predictable on-site attendance [was] an essential function of Harris’ job.  The court drew broad conclusions about workplaces in general:  “in most jobs, especially those involving teamwork and a high level of interaction, the employer will require regular and predictable on-site attendance from all employees,” and “most jobs would be fundamentally altered if regular and predictable on-site attendance is removed”.

In the 1990s, several federal appellate courts rejected telecommuting as a reasonable accommodation under the ADA, concluding that on-site attendance was typically essential.  In EEOC v. Ford  the EEOC charged that it was “self-evident,” that technology had advanced to the point that telecommuting was now a more viable accommodation.  This technological advance was not “self-evident” to the court, however, which faulted the EEOC for not introducing evidence to show how technology enabled Harris to perform her job at home.  Rather, the court pointed out several facts which suggested that telecommuting would not permit Harris to perform her essential job functions.   Although Ford had allowed Harris to telecommute on several occasions, those telecommuting experiments had failed, and Harris had agreed that four of her ten primary duties could not be performed at home.  As well, Harris proposed to work from home “as needed” and without a set schedule.  Although a few other Ford resale buyers telecommuted, they did so only on one set day per week and agreed to come to work if needed.   Against the backdrop of the court’s general view that “most jobs” require regular and predictable on-site attendance, these facts ruled out telecommuting as a reasonable accommodation for Harris.

Importantly,  the Court concluded that, under the facts of this case, Harris’s telecommuting proposal was not a reasonable accommodation because it would not allow her to perform the essential functions of her particular job.

A “Good Faith” Interactive Process:

In EEOC v. Ford, the Court ruled that, under the ADA, both employers and employees must engage in a good faith “interactive process” to determine whether a reasonable accommodation is possible.   The record showed that Ford had met with the plaintiff Harris, several times to discuss accommodations and, when it rejected Harris’s accommodation proposal, it told her it was willing to talk with her again if she could identify another accommodation that would meet her needs.  It was rule that this showed Ford’s good faith.  The Court also opined that it was a bad faith effort to place the burden entirely on Harris to come up with accommodation proposals, “abdicating any responsibility on its part to help in that process.”  What’s striking here is that precisely the same set of facts led to radically different conclusions about good faith participation in the interactive process.

Best Practices for Employers:

The Sixth Circuit’s conclusion that “most jobs” require regular and predictable on-site attendance is certainly a helpful precedent for employers resisting telecommuting as a reasonable accommodation, especially when the proposed telecommuting is irregular and unpredictable because the need to telecommute is on an “as needed” basis.  The Sixth Circuit’s decision also stressed the relevance of the employer’s judgment as to which functions of a job are essential.  What is crucial, however, is “not just what the employer says but also what the employer does.”  Thus, although it may be challenging to deny a telecommuting accommodation if other employees are telecommuting on a regular basis, an employer may still prevail if, as Ford was able to do, it can distinguish that other employees do not have telecommuting arrangements.

As always, an employer should engage in a reasonable accommodation interactive process and document that engagement.   The Court’s opinion in EEOC v. Ford emphasized the importance of regular meetings with the disabled employee to clarify accommodation requests and offer alternative accommodations.  The Court emphasized that an employee’s request for accommodation should be the starting point for discussions and that employers should avoid prematurely shutting down the interactive process or shifting the burden entirely to the employee to propose accommodations.   Although interactive processes must necessarily be tailored to the particular circumstances, employers should consider these guidelines when approaching accommodation requests – especially those that may include a telecommuting arrangement.