• Who Needs to Be at Work to Work Anymore? Almost No One, Court Says
  • May 12, 2014 | Author: Susan R. Maisa
  • Law Firm: Foley & Lardner LLP - Milwaukee Office
  • Can you require your employees to be at work to do their jobs? Maybe not any longer, at least in the Sixth Circuit (which covers Michigan, Ohio, Kentucky and Tennessee). In a recent decision in that circuit, an employee had irritable bowel syndrome that sometimes prevented her from driving to work and, on her worse days, caused her to soil herself when she stood up. The employee, a resale steel buyer for an automotive company, requested to be allowed to work from home “as needed” up to four days a week. Her employer rejected this request on the grounds that the employee needed to interact with her coworkers and others to do her job. The employee was ultimately terminated for poor performance. The Equal Employment Opportunity Commission filed suit on behalf of the employee and alleged the company had failed to accommodate the employee. The district court ruled in the employer’s favor, finding that the request to telecommute up to four days a week was not a reasonable accommodation.

    The appellate court disagreed. Despite finding that “the essence” of the employee’s job involved “group problem solving” that required the employee to interact with her team, suppliers and others in the company system “whenever problems arose,” it rejected the employer’s claim that such duties could not be performed from home. Instead, the court found that, in light of technological advances, most employees could do their jobs from literally anywhere, stating: “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 reaching this amazing and potentially far-reaching conclusion, the Sixth Circuit has effectively rejected the rationale behind many previous cases finding that telecommuting is a reasonable accommodation only in unusual circumstances. While it remains to be seen if this recent decision will be a harbinger of similar decisions by other courts, the case is important for two reasons. First, it will almost surely embolden the EEOC to make similar arguments in virtually any case in which an employee requests to telecommute as an accommodation. Second, it is a reminder to employers that they do need to take into account technological advances when faced with accommodation requests. Even if other courts do not go as far as the Sixth Circuit did in this case, there will be times when advances in technology will make accommodations that used to be unworkable and unreasonable no longer so. Employers need to explore such advances before concluding that an accommodation cannot be done. But, according to the Sixth Circuit’s ruling, that can be done remotely from, say, the beach.