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Telecommuting is a trend that is rapidly growing in the United States, and telecommuting requests are also on the rise as a potential reasonable accommodation under the ADA. A recent Sixth Circuit Court of Appeals case,EEOC v. Ford Motor Company, 2014 U.S. App. LEXIS 7502 (6th Cir. 2014) illustrates how difficult it can be for an employer to oppose a request for telecommuting.
Jane Harris was hired in 2003 by Ford as a resale buyer, serving as an intermediary between steel suppliers and “stampers,” which are companies that use steel to produce parts for Ford. Her job was to respond to emergency supply issues to ensure no gap in steel supply to parts manufacturers. The most important part of the job was group problem solving, requiring that a buyer be available to interact with members of the resale team, suppliers and others in the Ford system when problems arose.
Harris suffered from IBS, an illness that caused her fecal incontinence. Some days she could not drive to work or stand up from her desk without potentially soiling herself. She took intermittent leave when severe symptoms occurred. In 2005 her supervisor allowed her to work from home on a flex-time telecommuting schedule on a trial basis. The company did not view the trial period as a success. She continued to work occasionally from home doing remote work, including on evenings and weekends. However, Ford did not credit Harris with the time she spent working during non-“core” hours and marked the days she stayed home because of her illness as absences. The company stressed that core business hours were important because that was the time when employees do team problem solving.
On occasion Harris submitted a purchase order with incorrect pricing information because she could not immediately access the supplier on a weekend to obtain updated quotations. This caused problems with co-employees and suppliers. Under Ford’s system of marking absences, Harris was absent in the first seven months of 2009 during core hours more than she was present.
In 2009, Harris requested that she be permitted to telecommute on an as-needed basis as a reasonable accommodation. Harris felt that she could get most of her work done by computer or telephone. Ford had a telecommuting policy but not for all jobs. Harris’s supervisors did not feel that her position was suitable to telecommuting and denied the request. Instead, the company suggested that it could move her cubicle closer to the restroom or she could seek an alternative position within Ford that would be more suitable for telecommuting.
Harris filed a charge of discrimination with the EEOC. Eventually Ford terminated Harris for poor performance. In 2011 the EEOC filed a complaint alleging that Ford violated the ADA by failing to accommodate Harris’s disability. The district court followed precedent that indicated an employer should not second guess the employer’s assessment of the essential functions of the job and ruled against Harris. The Sixth Circuit Court of Appeals reversed.
The Circuit Court noted that Ford believed physical attendance at the workplace was critical to the group dynamic of the resale-buyer team. The Court did not defer to Ford’s description of the essential job functions:
While Ford has provided substantial evidence of its business judgment and the experience of other resale buyers, the EEOC has also offered evidence that casts doubt on the importance of face-to-face interactions at Ford. Harris’s own experience over several years as a resale buyer indicates that in-person interaction may not be as important as Ford describes: Even when Harris was physically present at Ford facilities, the vast majority of communications and interactions with both the internal and external stakeholders were done via conference call.
The Court noted that Ford did allow other resale buyers to telecommute, albeit on a more limited basis than the request Harris was making. The Court moved away from a previous position in prior cases that telecommuting is not a reasonable accommodation, saying that telecommuting may be reasonable when someone can perform all the essential functions at home.
Ford also argued that it made two alternative accommodations to Harris, as noted above, but Harris rejected those accommodations. The Court said that moving her cubicle closer to the restroom would not relieve Harris of the “humiliation of soiling herself on a regular basis in front of her workers, merely because she could use Depends to contain the mess or bring a change of clothes to clean herself up after the fact.” It said that allowing her to apply for another job was not adequate because there was no guaranty that such a position would be available.
The Court said that because the EEOC provided evidence that Harris was qualified for her position with a reasonable telecommuting accommodation, the burden shifted to Ford to show an undue burden on the company. “Although setting up a home workstation for Harris might entail some cost, considering Ford’s financial resources and the size of its workforce, this cost is likely to be de minimis. Indeed, Ford has created a written policy in which it pledges to absorb these costs for all employees approved to telecommute.”
The case shows that telecommuting is inevitably going to be viewed as a reasonable accommodation, no matter that earlier cases on the ADA did not find it to be. Employers that have telecommuting policies will be hard pressed to deny requests for accommodation where there is evidence that the employee can perform the essential job functions at home.