The Sixth Circuit recently held that a four day per week telecommuting arrangement could be a reasonable accommodation for a disabled employee, even though the employer determined, in its business judgment, that teleconferencing was an insufficient substitute for in-person work.
Executive Summary: The Sixth Circuit recently held that a four day per week telecommuting arrangement could be a reasonable accommodation for a disabled employee, even though the employer determined, in its business judgment, that teleconferencing was an insufficient substitute for in-person work. The court noted that, given the state of modern technology, the class of cases in which an employee can fulfill all requirements of the job while working remotely has greatly increased, and it is no longer the case that jobs suitable for telecommuting are "extraordinary" or "unusual." See EEOC v. Ford Motor Co., No. 12-2484 (6th Cir. Apr. 22, 2014).
Background Facts: Jane Harris worked as a resale buyer for Ford Motor Company from 2003 to 2009. Her role required some individual tasks, but the essence of her job required group problem-solving. Ford utilized a telecommuting policy that authorized employees to work up to four days per week from a telecommuting site, and several resale buyers telecommuted one day per week.
Throughout her employment, Harris suffered from irritable bowel syndrome ("IBS"). As her condition worsened, she began taking intermittent FMLA leave when she experienced severe symptoms. Harris was eventually permitted to work a flex-time telecommuting schedule on a trial basis. However, the company found this arrangement problematic as Harris was unable to establish regular and consistent work hours. Harris requested she be allowed to telecommute up to four days per week as an accommodation for her IBS. In response Ford offered her two alternative accommodations: moving her cubicle closer to the restroom or finding an alternative position. Harris rejected these offers and filed a charge of discrimination with the EEOC. The EEOC later filed suit on her behalf in federal court, claiming Ford violated the Americans with Disabilities Act (ADA). The trial court granted summary judgment in favor of Ford; however, on appeal the Sixth Circuit reversed the trial court.
Analysis of the Court: In a 2-1 decision, the Sixth Circuit held that Harris had presented evidence that she was a qualified individual with a disability on two alternative bases: (a) she was qualified for the position after the elimination of the requirement that she be physically present at work, or (b) she was qualified for the position with a telecommuting accommodation. The burden then shifted to Ford to prove either (i) the physical-presence requirement was an essential function of Harris's job or (ii) the telecommuting arrangement would create an undue hardship. The court found that Ford failed to prove either.
With regard to the physical-presence requirement, the court held that physical presence at the workplace could be considered an essential job function for positions that required face-to-face interactions with customers or other objects at the workplace, but noted that "the world has changed since the foundational opinions regarding physical presence in the workplace were issued. . .Therefore, we are not persuaded that positions that require a great deal of teamwork are inherently unsuitable to telecommuting arrangements." The court further held that, while leave on a sporadic or unplanned basis may be an unreasonable accommodation, telecommuting does not raise the same concerns as flex-time scheduling because an employer can still rely on an employee to be working during scheduled hours while working remotely. Accordingly, the court rejected Ford's concern that Harris be available for meetings or to handle urgent matters during the workday finding that her ability to engage in those activities did not depend on her physical presence in the office, but rather on her being consistently available during "core" business hours. In support of its rejection of Ford's business judgment, the court stated:
Courts routinely defer to the business judgment of employers because courts are not equipped with the institutional knowledge to sit as "super personnel department[s]." However. . . while we do not allow plaintiffs to redefine the essential functions of their jobs based on their personal beliefs about job requirements, neither should we allow employers to redefine the essential functions of an employee's position to serve their own interests. Rather, we should carefully consider all of the relevant factors, of which the employer's business judgment is only one.
The court also declined to find the alternative accommodations offered by Ford reasonable.
Employers' Bottom Line: This decision is troubling for employers because it shows that a court may reject the employer's business judgment in managing its workforce. Employers, particularly those with existing telecommuting policies, are now cautioned to seriously consider telecommuting as a reasonable accommodation under the ADA where an employee's disability affects his or her ability to be physically present in the workplace, but does not ostensibly affect the employee's ability to work during normal working hours. An important distinction must be made regarding whether the employee is seeking a flex-time or a telecommuting arrangement. Additionally, in the Sixth Circuit, courts cannot be expected to defer to an employer's business judgment that physical presence in the workplace is an essential job function: the employer must be able to demonstrate why physical presence is required and must be able to do so by relying on reasons beyond generalized concepts such as "team work" and "interoffice interaction." Carefully crafted job descriptions and narrowly defined telecommuting policies will be of the utmost importance.
If you have any questions regarding this Alert, please contact the authors, Louis Britt, lbritt@fordharrison.com, a partner in our Memphis office or Katie Parham, kparham@fordharrison.com, a senior associate in our Memphis office. You may also contact the FordHarrison attorney with whom you usually work.