Is Telecommuting a Reasonable Accommodation under the ADA? Recently, the Sixth Circuit in EEOC v. Ford Motor Company, held that it might be. In this case, Jane Harris, an employee with irritable bowel syndrome requested the opportunity to telecommute and work several days a week from home. Ford Motor Company refused claiming that an essential function of her job was to be at work at the actual physical location of the company. Although the district court agreed with Ford, the Court of Appeals for the Sixth Circuit disagreed holding that in fact there were reasonable questions of fact as to whether Ms. Harris was a “qualified individual with a disability” entitled to the protections of the ADA. Remember that the ADA does not protect everyone. To fall within the protections of the ADA, you must demonstrate that you are a “qualified individual with a disability”. There was no question that Ms. Harris had a disability, because her irritable bowel syndrome was a physical impairment that substantially limited her major life activity of proper functioning of her bowels. However, the question became whether she was a “qualified individual” with a disability. A qualified individual with a disability is someone who can perform the essential functions of the job with or without accommodation. Usually, a court will take the employer’s word for what the essential functions are if they have been listed on the job description prior to advertising or interviewing for the position. A reminder to all that it is important to make sure you have well-drafted job descriptions that accurately list the essential functions of each of your jobs. In this case, Ford Motor Company alleged that Jane Harris was not a qualified individual with a disability because she could not perform one of the essential functions of the job, to wit, “group problem-solving, which required that a buyer be available to interact with members of the resale team, suppliers and others in the Ford system when problems arose.” The Ford managers made the business judgment that such meetings were most effectively handled face-to-face, and that email or teleconferencing was an insufficient substitute for in-person team problem-solving. Since she could not perform these essential job functions in-person, Ford alleged and the trial court agreed that she was not a qualified individual with a disability. The Sixth Circuit disagreed and held that Ms. Harris was a “qualified individual” with a disability within the meaning of the ADA. The court in this case noted that “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. Thus, the vital question in this case is not whether “attendance” was an essential job function for a resale buyer, but whether physical presence at the Ford facilities was truly essential.” In this case, the court made clear that Ford could not demonstrate that physical presence in the office was truly an essential function of the job because Jane Harris introduced evidence that showed that refused this by demonstrating that “the vast majority of communications and interactions with both the internal and external stakeholders were done via conference call.” This should be a wake-up call for employers. Realize that a court will not just take the employer’s word for whether an employee is required to be physically in the office to perform the essential functions of the job vs. whether they can be performed remotely.
The Sixth Circuit in this case opined that “the class of cases in which an employee can fulfill all requirements of the job while working remotely has greatly expanded.” It suggested that the determination of whether being physically present in the office is an essential function of the position will be examined based on a variety of factors including written job descriptions, the business judgment of the employer, the amount of time spent performing the function, and the work experience of past and present employees in the same or similar positions. Thus, employers who plan to refuse to allow telecommuting as a reasonable accommodation should ensure that job descriptions make clear that physical presence in the office is an essential function of the job, rather than just relying on attendance. They should also make sure that others in a similar position cannot show that in fact physical attendance in the workplace was not required. This case makes clear that courts will now take a much closer look at an employer’s allegation that physical presence in the workplace is an essential function of the job. If after examining all the evidence including what the job description says, the amount of time spent performing the function and what has happened in the past with employees in similar positions, it appears that physical presence in the office is not an essential function, it is likely that courts will hold that an employee such as Ms. Harris in the instant case, is an otherwise qualified individual entitled to a reasonable accommodation of telecommuting in cases such as these. Keep in mind that employers who desire to allow employees to telecommute both as a reasonable accommodation and for other reasons should ensure they have a well-drafted telecommuting policy, an application to telecommute and a telecommuting agreement that a telecommuting employee would have to sign stating that the agreement can be terminated at any time in the sole discretion of the employer.