The Sixth U.S. Circuit Court of Appeals recently held that a four-day per week telecommuting arrangement could be a reasonable accommodation for a disabled employee. In this article, Louis Britt and Katie Parham from our US member FordHarrison analyse the decision. Originally posted on the Ius Laboris Knowledge Base: www.globalhrlaw.com

1. Is telecommuting as a reasonable
accommodation under the ADA the
new norm?
Publication Date: 9 June 2014 | Author(s): Louis Britt,
lbritt@fordharrison.com, Katie Parham, kparham@fordharrison.com
Member Firm(s): FordHarrison Country: United States
Executive Summary: The Sixth U.S. Circuit Court of Appeals (covering
the states of Kentucky, Michigan, Ohio and Tennessee) recently held that
a four day per week telecommuting arrangement could be a reasonable
accommodation for a disabled employee, even though the employer
determined, in its business judgment, that teleconferencing was an
insufficient substitute for in-person work. The court noted that, given the
state of modern technology, the class of cases in which an employee can
fulfill all requirements of the job while working remotely has greatly
increased, and it is no longer the case that jobs suitable for telecommuting
are “extraordinary” or “unusual.” SeeEEOC v. Ford Motor Co. (6th Cir.
Apr. 22, 2014).
Background:
The employee in this case, Harris, worked as a resale buyer for Ford
Motor Company. Her role required some individual tasks, but the essence
of her job required group problem-solving. Ford utilized a telecommuting
policy that authorized employees to work up to four days per week from a
telecommuting site, and several resale buyers telecommuted one day per
week.
Harris suffered from an illness that required her to take intermittent
medical leave and was eventually permitted to work a flex-time
telecommuting schedule on a trial basis. However, the company found
this arrangement problematic because Harris was unable to establish
regular and consistent work hours. Harris requested she be allowed to
telecommute up to four days per week as an accommodation for her
illness, but the employer rejected this request. It offered her alternative
accommodations, which Harris rejected. Harris filed an agency charge
claiming Ford discriminated against her on the basis of her disability. The
agency ultimately sued Ford on her behalf, claiming the company violated
the federal disability discrimination law when it denied her request to
telecommute.

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The Court’s Decision:
In a 2-1 decision, the Sixth Circuit held that Ford violated the disability
discrimination law by denying Harris’ request to telecommute as an
accommodation for her disability. The court rejected Ford’s argument that
physical presence at work was an essential function of Harris’ job because
she needed to be available for meetings and to handle urgent matters
during the workday. The court found that telecommuting does not raise
the same concerns as flex-time scheduling because the employer can
count on the employee to be working during scheduled hours while
working remotely. Although the court acknowledged that an employee’s
physical presence at the workplace could be considered an essential job
function for some positions, it was not persuaded that “positions that
require a great deal of teamwork are inherently unsuitable to
telecommuting arrangements.”
Employers' Bottom Line: This decision is troubling for employers
because it shows that a court may reject the employer’s business
judgment in managing its workforce. Employers, particularly those with
existing telecommuting policies, are now cautioned to seriously consider
telecommuting as a reasonable accommodation if an employee’s disability
affects his or her ability to be physically present in the workplace, but does
not ostensibly affect the employee’s ability to work during normal working
hours. An important distinction must be made regarding whether the
employee is seeking a flex-time or a telecommuting
arrangement. Additionally, in the Sixth Circuit, courts cannot be expected
to defer to an employer’s business judgment that physical presence in the
workplace is an essential job function. Instead, the employer must be able
to demonstrate whyphysical presence is required and must be able to do
so by relying on reasons beyond generalized concepts such as “team
work” and “interoffice interaction.” Carefully crafted job descriptions and
narrowly defined telecommuting policies will be of the utmost importance.
Originally posted on the Ius Laboris Knowledge Base:
www.globalhrlaw.com
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