“Telework” or “Telecommuting” is a work arrangement that permits employees to conduct work during any part of regular, paid hours at an approved alternative worksite – often the employee’s home. Advances in technology (including laptops, smart phones, and iPads) have made telework a more viable option, as many employees no longer need be physically present at the office to be productive. In its 1999 Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (revised 10/17/02), the Equal Employment Opportunity Commission (“EEOC”) said that allowing an individual with a disability to work at home may be a form of reasonable accommodation under the Americans with Disabilities Act. What followed was a flurry of litigation concerning the contours of when telework can and should be offered as a reasonable accommodation for a disabled employee.
We previously reported on a significant telework decision issued by the Sixth Circuit Court of Appeals in EEOC v. Ford Motor Company, No. 12-2484, 2014 WL 1584674 (6th Cir. Apr. 22, 2014), where a split three-judge panel found that Ford should have allowed an employee who had a severe case of irritable bowel syndrome to telecommute most of the time, even though her job duties required in-person contact with suppliers and computer work that could not be easily performed from a remote location. Specifically, the court found that Ford failed to establish that the employee’s physical presence in the workplace was an “essential function of her position.” Our analysis of this decision can be found at insights-reports-355.html. Upon Ford’s request, the Sixth Circuit agreed in September to vacate this ruling and reconsider the dispute en banc.
On April 15, 2015, a majority of the 12 Sixth Circuit judges overturned the court’s earlier decision, holding that the ADA “does not endow all disabled persons with a job – or job schedule – of their choosing,” and that “regular and predictable on-site job attendance” was a requirement of the employee’s job with Ford. Therefore, the court held that telecommuting was not a reasonable accommodation for the employee’s disability. EEOC v. Ford Motor Company, No. 12-2484 (April 15, 2015). The court explicitly noted the “sometimes forgotten guide” of “common sense” to find that regular in-person attendance is an essential function, as well as a prerequisite to the essential functions of most jobs.
In finding in favor of Ford, the court made two critical determinations. First, it concluded that, based upon the evidence demonstrating “poor performance and high absenteeism,” the employee at issue was not qualified to perform the essential functions of her job at Ford. Next, the court concluded that the employee could not prove that she could perform the essential functions of her job with a reasonable accommodation by finding that the employee could not “regularly and predictably attend the workplace – an essential function, and a prerequisite to other essential functions – even with the past reasonable accommodations of telecommuting trials and specialized plans to improve her attendance.” Because the employee was not “qualified” as a matter of law, the court did not even have to undergo a reasonable accommodation analysis.
While this decision represents a critical ruling for employers, there are several limitations that temper the impact of the court’s holding for employers. First, the record evidence demonstrated that Ford engaged in the interactive process for years and attempted to find a reasonable accommodation, including allowing the employee to telework on a trial basis. Second, the court determined that physical attendance was an essential function of this job in this case. Therefore, telecommuting may still be a reasonable accommodation under the ADA in other circumstances. Finally, the circuit court appears split on this issue, and there is no reason to believe that the EEOC will consider itself bound by the Sixth Circuit’s decision. Thus, the EEOC will likely continue to argue that telework is a viable accommodation for disabled employees.
As a best practice, employers must review every request for an accommodation individually. When an employee requests to telecommute, employers must consider the job duties of the employee’s specific position. Additionally, employers must continue to carefully consider the impact of existing telecommuting policies.
If you have any questions concerning EEOC v. Ford Motor Company, or would like a copy of the Court’s opinion or have any question with respect to employment issues, please contact a member of our Employment Practices Liability Practice Group.
This has been prepared for informational purposes only. It does not contain legal advice or legal opinion and should not be relied upon for individual situations. Nothing herein creates an attorney-client relationship between the Reader and Reminger. The information in this document is subject to change and the Reader should not rely on the statements in this document without first consulting legal counsel.
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