By Sara Eber Fowler and Johanna T. Wise
Last week, an en banc panel of the Sixth Circuit Court of Appeals took a fresh look at whether Ford Motor Company’s decision to deny an employee’s request to telecommute four days a week violated the ADA. Reversing its prior ruling from last year (previously reported here), the 8-5 panel in E.E.O.C. v. Ford Motor Company held that the employee’s request (citing her irritable bowel syndrome) was not a reasonable accommodation. (Employers collectively breathing a sigh of relief!)
As the opinion concedes, the decision does not tell us anything novel. It notes, as many courts have, that providing a reasonable accommodation “does not include removing an ‘essential function’ from the position, for that is per se unreasonable.” Rather, on the specific facts before it, the majority determined that “regular and predictable on-site job attendance” was an essential function of Harris’ position as a resale buyer. Accordingly, Harris’ request to be able to work from home the majority of the workweek – unscheduled and when she wanted – was not reasonable, and she could not perform her job with or without an accommodation.
The decision may certainly knock the wind out of the sails of the EEOC and others touting telecommuting as a virtual inevitability given the expanding use of technology in the workplace. Without doubt, the opinion provides strong support that an employer’s consistent, bona fide determination that in-person attendance is an essential job function may be given deference. But companies should think twice before ordering their workforce back to the job site. As we have previously noted, determining whether telecommuting is a viable reasonable accommodation still requires an individualized, case-by-case assessment.
In evaluating an employee’s request to telecommute as an accommodation, like any accommodation request, it’s best to start with identifying the position’s essential functions. Can the majority of those functions be performed from home or do they need to be performed at a physical job site? Consider whether the position requires face-to-face interaction with customers and clients, supervision of other employees, dynamic interactions with other co-workers, and use of specific equipment only available at the office. In Ford, the court emphasized that, while technology may be advancing in society at large, Harris’ resale buyer role required teamwork and interacting with others that was best done face-to-face. It considered that Ford had buyers work in the same building as the suppliers they met with so that they could have spontaneous, in-person meetings. For the court, this reinforced the legitimacy of Ford’s judgment that on-site attendance was important – and an essential function of the job.
Consistency also remains key. Consider your company’s telecommuting policy and practices – do other employees with similar positions telecommute? If so, ensure that any accommodation request is being considered consistent with the company’s standard practices and prior decisions. (And if you don’t have a telecommuting policy, think about implementing one!) In Ford, even though other buyers telecommuted occasionally, the court still found Harris’ accommodation request unreasonable, differentiating between those who worked remotely one day a week and Harris’ request to work up to four days from home.
Finally, we can’t forget the hallmark of any accommodation request: the interactive process. This includes participating in a dialogue with the employee and considering whether other accommodations may allow the employee to perform the job’s essential functions. It’s worth mentioning that Ford tried three times to have Harris telecommute, without success, and also proposed alternative accommodations that Harris rejected. Remember: an employer is only obligated to provide a reasonable accommodation, not an employee’s choice accommodation.
So keep doing what you’re doing! Despite this opinion, requests to telecommute as an accommodation will surely continue. Ensure your job descriptions are up-to-date, review your telecommuting policies and practices, and continue examining each accommodation request on a case-by-case basis. The work you put in – be it from home or the office – will be worth the investment as you consider requests to telecommute.
For more information on telework as a reasonable accommodation, please contact the authors, a member of the Absence Management and Accommodations Team, or your Seyfarth attorney.