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In a case that will likely frustrate employers attempting to provide reasonable accommodations to disabled employees, the Sixth Circuit Court of Appeal found that an employee’s physical presence at work may not be an essential job function and that depending on the job telecommuting may be a reasonable accommodation. In Equal Employment Opportunity Commission v. Ford Motor Co. Opinion, the Court of Appeal reinstated an EEOC-filed disability discrimination and retaliation lawsuit alleging that Ford discriminated and retaliated against a disabled employee by refusing to let her telecommute and later terminating her.

 

The Accommodation Request

Ford employee Jane Harris, who worked as a buyer, suffered from irritable bowel syndrome. The condition caused her to frequently miss work.   To address the situation, Ford allowed Harris to work on a flex-time telecommuting schedule on a trial basis.  However, the company later ended the telecommuting arrangement because Harris could not establish regular and consistent hours of work.  Several years later, Harris officially requested an “as-needed” telecommuting arrangement as an accommodation for her disability.  Ford had an established telecommuting policy that allowed employees to telecommute up to four days per week.   However, because Harris’s buyer position required regular interaction with co-workers and suppliers, the company determined that telecommuting was not a reasonable accommodation.  

 

Ford did offer Harris alternate accommodations, such as a different job more suitable to telecommuting or a work area near the restroom.  Harris rejected the accommodations and filed an EEOC charge of discrimination claiming Ford had denied her a reasonable accommodation.  When she was later terminated for excessive absenteeism, Harris added a retaliation claim.

 

Telecommuting rarely reasonable accommodation says district court

The EEOC eventually sued Ford alleging it violated the Americans with Disabilities Act (“ADA”) by not allowing Harris to telecommute as an accommodation and by retaliating against her for filing an EEOC charge.  Dismissing the case, the federal district court held that Harris was not “qualified” for her position because her disability prevented her from meeting Ford’s regular attendance standards. Regarding Ford’s decision not to accommodate Harris with a telecommuting arrangement, the court noted that, “in general courts have found that working at home is rarely a reasonable accommodation.”

 

Court of Appeals Reinstates Case

But the Sixth Circuit Court of Appeals thought otherwise and reinstated the case.  Most significantly for employers seeking guidance about reasonable accommodations, the court took direct aim at the general proposition that physical presence at work is an essential job function for all positions.  The court noted that “[a]dvancing technology has diminished the necessity of in-person contact to facilitate group conversations.” While Ford provided significant evidence that physical attendance was an essential function position, the EEOC also offered enough evidence genuinely to dispute that conclusion.   The court sent the case back to the district court for further proceedings.

 

ADA Lessons for Employers

While the Court of Appeal’s decision does not resolve this case, it does provide employers with some important ADA lessons.  

  • Employers bear the responsibility of establishing a job's essential functions.  Factors that help establish that functions are truly essential include written job descriptions, handbooks, and actual work experiences of employees performing similar functions.
  • Employers must ensure that written documents capture the true nature of work.  For example, if working on site as part of a team is required, the job description should say so.
  • Do not ignore advances in technology in evaluating possible reasonable accommodations.
  • Keep in mind that decisions about telecommuting and other flexible work arrangements may have broad implications.   Once these arrangements are permitted, it may be difficult for an employer to later deny the same options when requested as a reasonable accommodation. 
  • Each accommodation situation is unique and must be evaluated on the specific facts related of the position and the employee’s condition.

This case highlights the difficulties that employers can face in evaluating and providing reasonable accommodations for disabled employees.   Changes in technology will continue to be factor in the types of accommodations that employers must consider and provide. 

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