May 28, 2014

Ladyinhouse.jpgA recent federal appeals court decision seems to say “Yes” under the facts in that case.  This was found to be true even though the employer claimed working as part of a team was an important part of the job.  The 6th Circuit U. S. Court of Appeals in EEOC v. Ford Motor Co., No. 12-2484 (April 22, 2014), found an employee suffering from irritable bowel syndrome (IBS), who was deemed disabled under the ADA, was entitled to consideration of whether a “reasonable accommodation” to allow her to perform her job was telecommuting.  She had been terminated after poor performance ratings, which arose from excessive absences due to her disability.  The trial court had granted the employer, Ford Motor Co., a summary judgment that she was rightfully terminated and that telecommuting was not a reasonable accommodation.

How Did the 6th Circuit Review the “Reasonable Accommodation” Determination?

The employee, Jane Harris, who was a resale steel buyer for Ford Motor Co., began missing work frequently because of her IBS.  This, in turn, affected her job performance.  She formally requested being allowed to telecommute, as needed, as an accommodation.  Ford Motor Co. said this was not reasonable because her job required group meetings and problem-solving, at which she needed to be physically present for face-to-face meetings.  Ford offered to move her cubicle closer to the bathroom or to let her apply for another job that might be suitable for telecommuting.  Harris rejected these offered accommodations.  The 6th Circuit sided with her that Ford Motor Co. should have been required to seriously consider whether her physical presence was essential to the job and that telecommuting may have been a reasonable accommodation given today’s technology.   

Is Physical Presence at Job Location a Necessary Job Requirement?

Some cases in the past have generally said “Yes”, but the 6th Circuit said that it not as true today because of technological advances.  The court said that determining whether physical presence on the job is essential to the job is going to be highly-fact specific.  The EEOC argued that face-to-face interaction by Harris in this case was not as important as Ford argued to the employee’s job performance.  The 6th Circuit said that with today’s advances in ability to communicate, the “workplace” could be anywhere than an employee can perform her job duties.  The court thought EEOC had raised sufficient issues about whether Harris could perform the job from a remote location that the case should be sent back for trial.  It was Ford’s burden to show the employee’s actual physical presence was an essential job function.

Were Ford’s Offered Accommodations Reasonable?

The 6th Circuit said “No”.  Moving her cubicle closer to a bathroom was found unreasonable because still might have problems getting to the restroom as needed.  Offering her the right to apply for another job was not sufficient either, because a suitable position might not even be available.    The court also found Harris’s refusal of these offered accommodations did not disqualify her from pursuing her claim.

So, What Is An Employer To Do?

An employer cannot make a snap decision based on its own conclusions that telecommuting is not a reasonable accommodation for an employee with ADA issues.  You must conduct a serious, non-biased analysis of whether the employee’s actual physical presence truly is an essential requirement of the job.  If the employee can perform the essential functions of the job from somewhere else, refusal of telecommuting will probably be improper.  

With Skype or FaceTime, and all the other technology available today, actual physical presence at the job location may be less and less important, even in work “groups” where face-to-face exchange is a job component. Telecommuting may have to be considered as a means of accommodating many disabled employees after this decision.

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