Hunton Employment & Labor Perspectives

On April 22, 2014, the Sixth Circuit reversed the district court’s dismissal of an ADA case against Ford Motor Company, finding that there was a fact issue as to whether telecommuting most days is a reasonable accommodation. In EEOC v. Ford Motor Company (No. 12-2484), the court addressed an increasingly common, yet persistently difficult, question:  when must employees be allowed to work remotely, and when is physical, in-person attendance an essential function of a job?

In Ford, employee Jane Harris had worked for the company for six years as a resale buyer. She ensured Ford suppliers had the needed steel to manufacture parts.  Much of her job involved group problem-solving, which required interaction with others. Harris suffered from a severe case of irritable bowel syndrome that worsened over time.  By 2009, there were times she could not stand up or drive to work. Harris requested permission to telecommute on an “as-needed basis”, up to four days a week. She said most of her work could be done by computer or phone.

In a view that may resonate with many employers, Ford “made the business judgment that such [group] meetings were most effectively handled face-to-face, and that email or teleconferencing was an insufficient substitute for in-person team problem-solving.” So, it denied Harris’ request to telecommute. Ford did, though, suggest other possible accommodations, including moving Harris’ cubicle closer to the bathroom, or finding another job more suitable for telecommuting. Harris rejected these options.

Harris filed an EEOC charge alleging disability discrimination.  Afterwards, her performance was monitored via weekly meetings and she was placed in a performance management period. At the end of that 30-day period, Ford discharged Harris.

The EEOC sued on Harris’ behalf, alleging failure-to-accommodate discrimination and retaliation. The central legal issues in the case were: (1) was physical presence an “essential” job function, such that Harris could not be “qualified” for the job if she had excessive absenteeism, and (2) was telecommuting a reasonable accommodation.

The district court ruled in Ford’s favor and dismissed the case, but the Sixth Circuit reversed.  The appellate court found there were genuine issues of material fact as to whether Harris was qualified, or could be afforded reasonable accommodation, or was subject to retaliation.  The appellate court found Harris could perform all her job duties except that of physical presence, and it was not clear whether in-person attendance was essential for the resale buyer position. It also found Ford’s proposed alternatives were not reasonable under the facts.  According to the Sixth Circuit, Harris’ office location was not the problem, and reassignment is allowed only when no accommodation is possible in the current job. On the retaliation claim, the court found questions of fact as to the company’s motive.

There is not yet a finding that telecommuting is a reasonable accommodation in Ford. The case was remanded to the district court for further proceedings. Also, the case seems an outlier from other courts, and may not be followed in other circuits. Still, the case has several takeaways for employers.

• “Attendance” and “physical presence” are not the same.
  The Ford Court stated that “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.”  The EEOC created a question of fact as to whether Harris could actually perform her job with only one day physically in the office.  She would not be “absent” from work the other days, but would simply be working from a home location.
• A “workplace” is not just a brick-and-mortar building.
  The court acknowledged a long line of cases that have found “predictable” and “regular” attendance to be essential requirements of most jobs.  But, when those cases were decided, “technology was such that the workplace and an employer’s brick-and-mortar location were synonymous.” Technology has advanced significantly in recent years.  More and more employees work remotely, because the “workplace” is now partly virtual.  The Sixth Circuit concluded “attendance at the workplace can no longer be assumed to mean attendance at the employer’s physical location.”
• Consider current technologies. The law is evolving as technology advances. Remote or virtual conversations were difficult or unreliable only a few years ago. Now, they are routine, through formats such as video conferencing and web-based live meetings. As such, the Ford court concluded that “advancing technology has diminished the necessity of in-person contact to facilitate group conversations.”
• Positions that require “teamwork” are not “inherently unsuitable” to telecommuting.
  Many courts defer to employer judgment about essential functions and whether in-person presence is required to effectively brainstorm, problem-solve and engage in group-think strategies. But, Ford noted that employers may not define essential functions of a job “to serve their own interests.” All relevant factors must be considered, and an employer’s business judgment is “only one.” It may be risky to assume any position that relies on a group dynamic is per se unfit for telecommuting.
• Telecommuting does not mean “flex time.”
• The court rejected Ford’s arguments that remote workers may be unavailable during “core” business hours. This is not an issue with telecommuting, where employees do their same jobs during regular work hours, but from home. It is “flex time” arrangements that may pose this problem, where employees schedule their own hours.
• Be careful relying on past attendance issues in denying telecommuting requests.

Ford argued that Harris should not be allowed to telecommute for a large portion of the work week because she had previous attendance problems. But, her attendance issues were related to her disability. Ford had refused to let her work from home during condition flare-ups, which created attendance issues. The Ford Court reasoned “[i]t would be inconsistent with the purposes of the ADA to permit an employer to deny an otherwise reasonable accommodation because of past disciplinary action taken due to the disability sought to be accommodated.”

Employers should undertake a careful, case-by-case assessment of any request for telecommuting as a reasonable accommodation. There are certainly many jobs where telecommuting still is not appropriate.  But, the list may be growing smaller.  Employers should consider seeking counsel given the changing environment.