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Telecommuting May Now Be Considered “Regular Attendance at the Workplace” For Purposes of the ADA

In an abrupt departure from previous precedent, the Sixth Circuit Court of Appeals (which reviews decisions by federal trial courts in Tennessee, Kentucky, Ohio and Michigan) ruled on April 22, 2014, that new advances in technology may compel employers to offer telecommuting as a reasonable accommodation to certain disabled employees, even if the employer believes that an employee’s physical presence at its worksite is an essential function of the job.

Case Background
Jane Harris was a buyer for Ford Motor Company. Ford had a policy allowing salaried employees to apply to telecommute on a limited basis, though not all jobs or work environments were suitable for such an arrangement. Several buyers did telecommute on one scheduled day per week. Because of her IBS (Irritable Bowel Syndrome, which Ford conceded was a disability under the ADA), Harris requested the reasonable accommodation of being allowed to telecommute on an as-needed basis. Her request was denied, as her supervisors concluded that her position was not suited to telecommuting on an unpredictable basis (up to several days per week). Harris’ work performance began to fall off, and she was ultimately terminated. She filed a charge with the EEOC, which then filed suit on her behalf against Ford on her behalf alleging failure to accommodate under the ADA.

After the trial court held in Ford’s favor without a trial, Harris filed an appeal with the Sixth Circuit Court of Appeals. Having established that Harris was disabled and arguably qualified for her job, the Court turned to the questions of whether (1) physical presence at Ford was a requirement of Harris’ job, and (2) if not, whether the requested telecommuting arrangement would create an undue hardship for Ford.

The Court agreed with Ford that regular attendance “at the workplace” was undoubtedly essential for Harris’ job. However, the court refused to accept that the term “workplace” was limited to the employer’s premises.

  • Noting that the law must respond to advances in technology, the Court stated that the “workplace” is anywhere that an employee can perform her job duties.
  • In this case, even though teamwork with colleagues was essential to Harris’ job, group discussions could be facilitated via teleconference, according to the Court.
  • Further, even though Harris needed to interact with clients as part of her job, this too could be done via teleconference. Alternatively, if Harris needed to meet with a client one-on-one, the Court determined that she could drive from home to the client’s location.

The Court emphasized that telecommuting was not to be confused with “flex-time” arrangements. Ford had argued that telecommuting was not practical for Harris because she had to interact with team members and access information during core hours. But the Court pointed out that Harris would be able to access such persons during core hours – just from home, rather than at Ford’s offices.

In summarizing its holding reversing the ruling in Ford’s favor, the Sixth Circuit Court of Appeals made clear that it was not rejecting the notion that “predictable attendance” is an essential function of most jobs. Nor was it holding that most jobs lend themselves to telecommuting. However, because of modern technology, it is no longer true that jobs suitable for telecommuting are “extraordinary” or “unusual.”

What Does This Mean for Employers?
So what does this case mean for employers within the Sixth Circuit, which includes Ohio and Kentucky? It signals that they will have to give greater consideration in the future to permitting employees to telecommute as a reasonable accommodation for a disability. This will obviously not be an option for a factory worker who operates heavy machinery or for a worker who must personally interact with customers or patients, such as a nurse or retail store assistant. But it may apply to employees in clerical or professional positions whose work can be accomplished by computer, teleconferences, etc.

It is reasonable to assume that employers who have telecommuting policies in place will face an even stronger argument that telecommuting should be offered as a reasonable accommodation for disabled employees. For this reason, employers may want to consider, with the assistance of counsel, whether their telecommuting policy should be eliminated or tightened.




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