Telecommuting May Not be a Reasonable Accommodation Under the ADA if On-Site Attendance is an Essential Function of the Position

On April 10, 2015, a full panel of the Sixth Circuit Court of Appeals (covering Michigan, Kentucky, Ohio, and Tennessee) decided in an unpublished decision that a former Ford employee, Jane Harris, was not a qualified individual with a disability because her excessive absences prevented her from performing the essential functions of a resale buyer. The Court further held that Harris’ telecommuting proposal was not reasonable because it removed an important essential function of her position: regular, in-person attendance. This decision vacated an earlier three judge panel decision that the plaintiff’s proposed telecommuting request was a possible reasonable accommodation.

The facts of this case showed that the plaintiff, Jane Harris, was a resale steel buyer for Ford Motor Company. Harris suffered the debilitating symptoms of Irritable Bowel Syndrome (IBS). Harris started out as a competent, though not perfect, employee as noted in her performance reviews. As a resale steel buyer, Harris served as an intermediary between the steel suppliers and “stampers,” the companies that use steel to produce parts for Ford. Harris’ role was to respond to emergency supply issues to ensure that there would be no gap in steel supply parts for the parts manufacturers. Her position involved some individual tasks such as uploading spreadsheets and periodic site visits to observe the production process, but the essence of her job was group problem-solving, which required her to be available to interact with members of the resale team, suppliers, and others in the Ford system when problems arose. Ford managers made the business judgment that such meetings were mostly effectively handled face-to-face and that email or teleconferencing was an insufficient substitute for in-person team problem-solving.

When Harris’ symptoms worsened, her supervisor allowed her to flex her time and telecommute on a trial basis on three separate occasions, but found this to be unsuccessful because Harris was unable to establish regular and consistent work hours.  Harris’ absences started to affect her job performance. Harris formally requested that she be allowed to telecommute on an as-needed basis to accommodate her disability. Ford denied this request. Ford suggested alternative accommodations, including moving Harris’ cubicle closer to the restroom or seeking another job within Ford more suitable to telecommuting. Harris rejected both of those offers and filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC).

Over time, the record also showed that Harris’ performance worsened and by her sixth year of employment (her last), her evaluations showed that she was not performing the basic functions of her position. Harris’ IBS condition contributed to the situation. Unfortunately, as her symptoms increased her stress, the increased stress worsened her symptoms – making her less likely to come to work. Eventually, after being placed on a Performance Evaluation Plan (PEP) and after failing to achieve identified objectives, Ford terminated Harris’ employment.

In 2011, the EEOC filed a complaint in the Eastern District of Michigan alleging that Ford failed to accommodate Harris’ disability and that it retaliated against her for filing a charge with the EEOC. Ford moved for summary judgment on both claims and the district court dismissed Harris’ case. The EEOC appealed and a divided panel reversed the trial court’s dismissal noting that telecommuting could be a reasonable accommodation in some cases and that it was possible this was a reasonable accommodation for Harris. The entire Sixth Circuit granted en banc review and vacated the panel’s prior decision (EEOC v Ford Motor Co., 752 F.3d 634 (6th Cir. 2014).

The Court expounded upon the general rule that, “an employee who does not come to work cannot perform any of her job functions, essential or otherwise.” The Court stated that “most jobs require the kind of teamwork, personal interaction, and supervision that simply cannot be had in a home office situation.” The Court, noting that “an employee bears the burden of proposing accommodation(s) that will permit her to effectively perform the essential functions of her job” found that the plaintiff’s up-to-four-days telecommuting proposal, unreasonable. Although Harris’ co-workers were permitted to telecommute, this was accomplished through materially different schedules: on one set day per week – no more and sometimes less. Critically, every telecommuter agreed in advance to come into work on their set telecommuting day if needed at the worksite. The Court found that this was a far cry from Harris who (i) requested up to four telecommuting days a week; (ii) would not schedule work days in advance; and (iii) refused to come on-site if needed.

Finally, the Court stated that the EEOC’s request for unpredictable and frequent telecommuting would cause practical harm to private employers. Although the Americans with Disability Act (ADA) requires employers to make reasonable accommodations, including telecommuting under the proper circumstances, allowing all people with a disability to telecommute on an unpredictable basis could turn a protective tool into a weapon, forcing companies to tighten telecommuting policies to avoid liability and potentially disadvantaging employees whose accommodation requests are more reasonable. The Court also found that great advances in modern technology, such as emails, telephones and computers, did not show that Harris’ highly interactive job could be efficiently performed at home.

Takeaways from the Case

1. Telecommuting should not be confused with flex-time. Telecommuting is about where work is done and flex-time is about when the work is done.
2. Attendance and physical presence should not be confused. Technology makes it possible to do many jobs from anywhere, making physical presence less critical to the performance of certain jobs.
3. Offer reasonable and feasible alternatives. Engage in the ADA interactive process and take the request seriously.
4. Clear Job Descriptions. If physical presence and regular, predictable and on-site attendance is essential, be clear as to why this is the case in the job description.
5. Document your response to telecommuting and the reasons why or why not the request should be granted.
6. Document the cost of establishing and monitoring an effective telecommuting program.
7. Protect Data. Employers should require telecommuters to take steps to protect the confidentiality of sensitive data or trade secrets.
8. Unpredictable ad hoc telecommuting is generally not reasonable.
9. If telecommuting is not a reasonable accommodation, the employer does not have to allow it.

Elizabeth Rae-O’Donnell is an attorney in our Livonia office where she concentrates her practice on municipal law, employment and labor law, and education law. She may be reached at (734) 261-2400 or erae@cmda-law.com.