An Inconvenient ADA (Americans with Disabilities Act) Accommodation—Telecommuting
In its 2005 guidance on working at home, or telecommuting, as a reasonable accommodation, the EEOC said that “[m]any employers have discovered the benefits of allowing employees to work at home through telework…programs.” I suspect as many requests to work at home are met with quiet groans by employers as by the excitement of discovering the benefits of telework, especially when a “team” member is making the request. In such a case, one member working at home while the others are in the office can be extremely inconvenient, even an undue hardship, to the employer.
A recent Sixth Circuit decision is likely to lead to more telecommuting requests, and more lawsuits against employers denying these requests. EEOC v. Ford Motor Company (6th Cir. April 22, 2014). It is a “must read” for an employer evaluating a request to telecommute as an accommodation.
The EEOC had brought the suit against Ford on behalf of Harris, a resale steel buyer, which is an intermediary between steel suppliers and the companies that use steel to produce parts for Ford. To try to control the symptoms of her irritable bowel syndrome, Harris asked to telecommute “up to four days per week.” Ford argued that “the essence of the job was group problem-solving,” which required that the buyer be available to interact with others, and that her job included meeting with suppliers. Ford denied the request; the district court granted summary judgment to Ford on the accommodation claim.
In a 2-1 decision, the Sixth Circuit reversed and remanded the case for further proceedings. The court held that the EEOC had produced sufficient evidence to create disputed issues about whether presence at the worksite was an essential function of the job and whether telecommuting was a reasonable accommodation. The court noted that, due to the advance of technology, the workplace can no longer be assumed to mean the employer’s physical location. The court said that that the law must recognize “that the ‘workplace’ is anywhere that an employee can perform her job duties.”
Responding to the dissent’s comment that in 1997, the Sixth Circuit said that it would be an “unusual” case for an employee to survive summary judgment in a telecommuting case, the court said that “given the state of modern technology, it is no longer the case that jobs suitable for telecommuting are “extraordinary” or “unusual.”