Monday, November 10, 2014

Telecommuting as a Reasonable Accommodation Under the ADA

For a long time it was considered a given that an essential function of any job was that the employee had to be able to show up for work. If a disabled employee could not report to work, then no reasonable accommodation was available and the employer’s responsibilities under the ADA were discharged. Maybe not so any longer.

Recently, the Sixth Circuit reversed a District Court grant of summary judgment in favor of the defendant Employer, Ford Motors, in an ADA action by one of its employees on the basis that the company did not explore the option of telecommuting for plaintiff.  In that case, EEOC v. Ford Motor Co, the plaintiff was a resale buyer who suffered from severe irritable bowel syndrome. A resale buyer essentially acts as an intermediary between suppliers and the company to ensure that the company has sufficient steel for its parts manufacturers.

Plaintiff found it nearly impossible to report to work every day because of her IBS. She exhausted her FMLA leave as well as a number of other leave of absences and flex benefits provided by the defendant. She even tried telecommuting on a trial basis which resulted in, among other things, her performing duties outside of the regular workday for resale buyers, to the dissatisfaction of plaintiff’s supervisor and the company. Additionally, defendant offered other accommodations, including relocating plaintiff’s workstation closer to the restroom and offering her another position which it believed was more suitable to telecommuting.

According to Ford, resale buyers primarily troubleshoot for the company with regard to steel supplies which largely requires working and interacting with a designated team to address emergency supply issues.  While the company has a telecommuting policy in place, it concluded that plaintiff did not qualify for telecommuting because a high need existed for resale buyers to interact face-to-face and to be physically present during the regular workday. The plaintiff’s performance deteriorated and ultimately, defendant found that telecommuting was not available for plaintiff’s position and since she could not report to work on a regular basis, plaintiff was not an “otherwise qualified” individual for her job, under the ADA. Ford terminated her employment.

The EEOC argued that the employee was otherwise qualified for her position if the requirement of being physically present at work was eliminated. The EEOC showed that plaintiff’s performance issues were largely related to the struggle of her working from home. Her actual work was satisfactory.

The District Court granted summary judgment for Ford but the Sixth Circuit reversed by a 2 – 1 panel vote, finding that defendant had not sufficiently engaged in the interactive process by failing to explore telecommuting options.  Currently, the full court is reconsidering the decision en banc.

Irrespective of the full court’s decision when it reconsiders the case, employers should take note. Telecommuting is a work option that has become much more reasonable in recent years. Naturally, many jobs exist which simply do not allow telecommuting. A receptionist or a police officer can certainly not discharge their duties from home, but employers should reject their ingrained notion that jobs can only be done right if the employee is at the employer’s work location. When engaging in the interactive process under the ADA, employers should give careful consideration as to whether an employee can work from home at least part of the time. While the answer is dependent always on the particular employer and job, telecommuting at least part of the time may in fact be a reasonable accommodation under the ADA.