Telecommuting.jpgUnder a recent federal court ruling, Michigan employers must be prepared to consider telecommuting as a reasonable accommodation under the Americans with Disabilities Act (ADA) for an employee under a 4/22/2014 court ruling.  

Specifically, Jane Harris was terminated from her position as a resale steel buyer at Ford Motor Co. This termination occurred shortly after she asked to telecommute several days per week in an attempt to control the symptoms of irritable bowel syndrome (IBS).

The Equal Employment Opportunity Commission (EEOC) took up this case and argued at the district court level that Ford discriminated against Ms. Harris on the basis of her disability and retaliated against her for filing a charge with the EEOC.

The district court rejected this argument and dismissed the case in favor of Ford. But this decision was reversed on appeal by the U.S. Sixth Circuit Court of Appeals (the federal jurisdiction covering Michigan).

Reasonable Accommodations in General

Before jumping into why telecommuting must now be a consideration as a reasonable accommodation, a brief overview of the ADA is in order.

Under the ADA, an employer may not “discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). An employer “discriminates” under the ADA if it does not make “reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or an employee, unless [the employer] can demonstrate that the accommodation would impose an undue hardship on the operation of the business.” Id. at § 12112(b)(5). 

Returning to telecommuting as a reasonable accommodation, the EEOC argued that Ms. Harris was: (a) Qualified for the position after the elimination of the requirement that she be physically present at Ford facilities or (b) Qualified for the position with a telecommuting accommodation.

Here is the reasoning the Court used and that employers need to understand

It is important, at this juncture, to clarify that we are not rejecting the long line of precedent recognizing predictable attendance as an essential function of most jobs. Nor are we claiming that, because technology has advanced, most modern jobs are amenable to remote work arrangements. As we discussed above, many jobs continue to require physical presence because the employee must interact directly with people or objects at the work site … We are merely recognizing that, given the state of modern technology, it is no longer the case that jobs suitable for telecommuting are “extraordinary” or “unusual.

To appreciate the significance of this ruling, consider the district court had accepted Ford’s assertions that in-person interactions were an “essential function” of the resale buyer position: and the “ADA requires courts to consider ‘the employer’s judgment as to what functions of a job are essential.” Accordingly, under the district court’s ruling because Ms. Harris could not be physically present at work, she was not “otherwise qualified” for the position.

What this means for Employers

Employers and HR professionals should read the entire EEOC v Ford Motor Co. opinion. But several important take-aways include:

  1. First, the Court of Appeals noted that it was not rejecting the premise that attendance is an essential function or that technology has eliminated the need to be physically at work. But, employers appear to have lost the ability to simply recite those previously magical phrases and expect to end the discussion of whether telecommuting is a reasonable accommodation. 
  2. Second, Ford conducts its operations throughout the world and has existing capabilities or the resources to facilitate a telecommuting position for employees. But the ADA applies to companies with as little as 15 employees, which must provide reasonable accommodation to qualified individuals with disabilities unless it results in undue hardship on their businesses. Certainly the costs of telecommuting have decreased through technologies, especially with may businesses moving to cloud services. But there is still a cost to consider. However, does that cost approach an “undue hardship?” 
  3. Third, employers should consider reassessing their job descriptions. Despite this ruling, the ADA still requires courts to consider “the employer’s judgment as to what functions of a job are essential.” A more detailed job description may bolster an employer’s position in illustrating what job functions are “essential,” including attendance. 
  4. Fourth, employers definitely need to have a well-defined telecommuting policy in place. That policy also needs to be consistently applied. I think the issue of consistency worked against Ford in that it allowed employees in certain positions to telecommute up to four days a week. And employees in Ms. Harris’ position were allowed to work remotely one day a week. So when Ford rejected Harris’ request to telecommute four days a week, it created a question of fact as to whether Ford fired Harris because it believed she could not perform her job duties effectively.

For questions about complying with the Americans with Disability Act or reasonable accommodations in the workplace such as telecommuting, contact attorney Jason Shinn. Mr. Shinn is a Michigan employment attorney who works with businesses to comply with federal and Michigan employment laws. Also, for additional insight on this issue ruling, see Road Rules: Ruling Now Guides Telecommuting As Reasonable Accommodation Discussion, by attorney Gabe Jiran.