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Telecommuting May Be a Reasonable Accommodation Under the ADA




by:
Katie Cassidy Tranter
Dressman Benzinger LaVelle psc - Cincinnati Office

 
August 25, 2014

A recent decision from the Sixth Circuit Court of Appeals, EEOC v. Ford Motor Company, calls into question whether telecommuting is a reasonable accommodation for a disabled employee under the American with Disabilities Act (ADA). Under the ADA, employers may not discriminate against qualified individuals who, with or without reasonable accommodation, can perform the essential functions of their job.

Prior to this decision, the Sixth Circuit and other federal courts have held that telecommuting is not required as a reasonable accommodation for disabled employees. The reasoning for this was that regular work attendance on a predictable schedule is an essential function of almost all jobs, with the exception of jobs regularly done by all employees from a remote location.

In the Ford decision, however, the Sixth Circuit reversed course, finding that while attendance is still an essential function of every job, physical presence at an employer’s worksite may not be. The court found that whether physical presence is an essential function is “a highly fact specific question.”

The employee here held the position of resale steel buyer, and spent a great deal of time working on the phone and on her computer. She also was expected to have significant personal “face time” with suppliers. She suffered from a severe case of irritable bowel syndrome, and used intermittent FMLA leave over a period of time when she could not report to work due to her condition. Ford allowed her to telecommute on a trial basis, but this was unsuccessful, as Ford did not believe she could perform her job satisfactorily this way. The employee asked to be permitted to work from home four out of five days each week.

Instead, Ford engaged in an interactive process with the employee and proposed other reasonable accommodations. These included moving her desk close to the restroom and allowing her to transfer to another position that was more conducive to telecommuting. However, the employee refused both of these proposed accommodations.

In its decision, the Sixth Circuit held that the employee’s proposal to work from home four out of five days each week was not unreasonable. This is a departure from the court’s previous decisions. The court justified this by stating that changing technology has made working from home a more viable solution than in the past.

Especially worrisome for employers is that the court did not defer to Ford’s business judgment that physical attendance was essential for the position of steel buyer. Ford presented a great deal of evidence that this position could not be performed well if the steel buyer was always working from home, but the court disregarded this. This decision is also concerning in that it could open employers to various telecommuting claims under the ADA.

A key takeaway is that employers must always engage in an interactive discussion with an employee who requests any kind of accommodation. Employers must consider every request but are not necessarily required to grant each one. An accommodation under the ADA must be reasonable. The case law is unsettled in this area and technology related to telecommuting is frequently changing. Employers are advised to document all requests for accommodation and to engage with employees to hopefully find a reasonable accommodation with which both the employee and employer can live.

 

The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.
 

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Author
 
Katie Cassidy Tranter
Practice Area
 
Labor & Employment
 
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