Is Telecommuting a Reasonable Accommodation? Maybe.

by Amelia J. Holstrom

freeimage-3740960-webUntil recently, employers in the Sixth Circuit thought that when regular and reliable attendance is an essential function of a job, telecommuting is a reasonable accommodation only in unusual cases.  In EEOC v. Ford Motor Company, however, the Sixth Circuit Court of Appeals called that long-held belief into question when it allowed former employee Jane Harris to proceed to trial on her disability discrimination and retaliation claims.

Harris, who had severe Irritable Bowel Syndrome (“IBS”), was employed as a resale buyer at the Ford Motor Company.  As such, she had to participate in group problem solving which required her to interact with suppliers and other members of the resale team.  Due to her IBS, Harris was unable to come to work on a regular and reliable basis.  As a result, she requested that she be permitted to telecommute from home 4 days a week.  Ford denied that request stating that her job required “teamwork” and that her physical presence in the office was an essential function of her position.  In response, Harris sued and alleged, among other things, that Ford had failed to accommodate her disability in violation of the ADA.  Ford later fired Harris for performance issues.

After discovery, the trial court ruled on a motion filed by Ford that Harris was not a “qualified” individual because her requested accommodation did not enable her to perform all of the essential functions of her position.  Specifically, according to Ford (and the trial court), Harris was unable to work with her team because her physical presence was a necessity.  The EEOC appealed.

While acknowledging that prior cases held that when regular attendance is an essential function of a job telecommuting is a reasonable accommodation only in usual cases, the Sixth Circuit disagreed with the trial court.  In doing so, the Sixth Circuit turned to modern technology and stated that due to technological changes the class of jobs for which working from home may be reasonable has expanded.  As a result, Harris’ claim for discrimination will proceed to trial where a jury must decide if telecommuting was a reasonable accommodation that would have allowed Harris to perform the essential functions of her job.

The decision raises the inference that, at least in the Sixth Circuit, regular attendance may not mean physical presence in the workplace.  More importantly, however, employers now have to consider whether telecommuting is a reasonable accommodation in more than just unusual cases.  For employers in Massachusetts and Connecticut, which belong in the First and Second Circuits, respectively, this case is persuasive, but not binding, authority.  The EEOC, however, is likely to rely on this decision and before long it may come to a circuit court near you.

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