Telecommuting under ADAMichigan employers dodged a bullet (sort of) on when it comes to whether telecommuting must be considered as a reasonable accommodation under the Americans with Disabilities Act (ADA).

Specifically, in a “judicial do-over,” the full Sixth Circuit Court of Appeals in EEOC v. Ford revisited a prior decision (previously discussed here) that had concluded that employers may be required to consider telecommuting (i.e., working remotely) under the ADA. This time, the Court determined that Ford Motor Co. did not violate the ADA by refusing to allow an employee with irritable bowel syndrome to telecommute up to four days a week because “regular and predictable attendance” at the workplace was an essential function of her job. The employee, was a Ford steel resale buyer who had sought to work from home as an accommodation for her bowel condition. Ford rejected this request and resulted in the Equal Employment Opportunity Commission (EEOC) suing on behalf of the employee.

Originally, back in September 2012, the Michigan Eastern District found in favor of Ford and concluding that working from home, up to four days per week, was not a reasonable accommodation under the ADA. But, the EEOC appealed that decision and in April 2014 a partial panel of Sixth Circuit judges reversed the trial court’s 2012 decision concluding that there was an issue of fact as to whether the employee’s telecommuting proposal was reasonable. However, fast forward to April 2015 and the full Sixth Circuit vacated the 2014 decision and said the trial court got it right in its 2012 decision in favor of Ford.

In doing so, the Sixth Circuit’s 2015 decision gave significant ammunition to employers for refusing telecommuting as a reasonable accommodation:

… a general rule that, with few exceptions, ‘an employee who does not come to work cannot perform any of his job functions, essential or otherwise’ … That general rule—that regularly attending work on-site is essential to most jobs, especially the interactive ones—aligns with the text of the ADA. Essential functions generally are those that the employer’s ‘judgment’ and ‘written [job] description’ prior to litigation deem essential … And in most jobs, especially those involving teamwork and a high level of interaction, the employer will require regular and predictable on-site attendance from all employees (as evidenced by its words, policies, and practices).

Five judges of the Sixth Circuit dissented, essentially arguing that a jury should have been allowed to decide whether Harris’s telecommuting proposal was reasonable. In this regard, the dissent made a compelling argument that under the ADA and its associated goals, an employee’s request for accommodation should be a starting point for discussions and that employers should not be able to shut down that starting point in the interactive process and thereby shift the burden entirely to the employee to propose other accommodations. But again, that was not the winning argument after the judicial dust settled.

Key ADA Accommodation Points for Employers

While this was a long and winding judicial road-trip, after the dust settled, a number of key points should be carefully assessed when it comes to engaging in a reasonable accommodation interactive process required under the ADA.

  1. First and perhaps most significantly, the Sixth Circuit’s panel went beyond the above “general rule” that “regular and predictable on-site attendance” was an essential function and a prerequisite to perform other essential functions of the employee’s job. In this regard, the Court broadly concluded “in most jobs, especially those involving teamwork and a high level of interaction, the employer will require regular and predictable on-site attendance from all employees,” and “most jobs would be fundamentally altered if regular and predictable on-site attendance is removed.”
  2. Second and despite the preceding point, the majority opinion did not rule out telecommuting as a reasonable accommodation in all cases (that would be too easy). Instead, it concluded that, under the facts of the Ford case, the employee’s telecommuting proposal was not a reasonable accommodation because it would not allow her to perform the essential functions of her particular job.
  3. Third, the Sixth Circuit’s 2015 decision also emphasized the significance of the employer’s judgment as to which functions of a job are essential. But employers need to understand that it isn’t simply a matter of taking a position without backing it up. Instead, it is critical to be able to demonstrate the essential job functions, often through well-written and accurate job descriptions, which may also provide a legitimate basis where some employees are allowed to telecommute (as was the case at Ford), to distinguish those other telecommuting arrangements.

For more information about this decision or complying with the Americans with Disabilities Act, including responding to request for accommodations under the ADA, contact employment attorney Jason Shinn. Since 20o1, Mr. Shinn has represented employers and employees when it comes to complying with federal and Michigan employment laws.