By Eric B. Meyer
These blogging fingers have had much to say about telecommuting as a reasonable accommodation under the Americans with Disabilities Act.
Most notably, last September, in this post, I addressed a case in Michigan in which the U.S. Equal Employment Opportunity Commission argued that Ford Motor Company should be required to accommodate an employee with irritable bowel syndrome (an ADA disability) by allowing her to telecommute several days per week.
Modern workplace more than just an office
Ford’s managers concluded that the plaintiff could not work from home on a regular basis for up to four days a week. Choosing not to second-guess Ford’s business judgment, federal court hearing the case granted summary judgment to Ford.
Now, the modern workplace is more than just the office.
Yesterday, the Sixth U.S. Circuit Court of Appeals, based in Cincinnati, reversed (opinion here in EEOC v. Ford Motor Co.).
Once again, Ford argued that attendance at work was an essential job function and, by telecommuting several days per week, the plaintiff could not meet that requirement.
The appellate court agreed that attendance may be an essential job function. However, the Sixth Circuit recognized that technology has extended the workplace beyond the office’s brick and mortar, such that “attendance” may include telecommuting:
When we first developed the principle that attendance is an essential requirement of most jobs, technology was such that the workplace and an employer’s brick-and-mortar location were synonymous. However, as technology has advanced in the intervening decades, and an ever-greater number of employers and employees utilize remote work arrangements, attendance at the workplace can no longer be assumed to mean attendance at the employer’s physical location. Instead, the law must respond to the advance of technology in the employment context, as it has in other areas of modern life, and recognize that the ‘workplace’ is anywhere that an employee can perform her job duties.”
What should employers do?
But, whether “physical” attendance at work is an essential job function is a “highly fact specific” question. It depends on factors such as the need for face-to-face interaction with customers and clients.
And while the company’s business judgment on these issues is important, it is not dispositive. Rather, if in reality, an employee can demonstrate that he/she can effectively perform her job while telecommuting, a court will give that assessment some weight.
So, what is an employer to do?
- Even though this decision only controls the Sixth Circuit (Ohio, Kentucky, Tennessee, and Michigan) the court’s 21st century analysis of the workplace should appeal to other courts throughout the country. Therefore, I would expect that this commonsense view of how technology impacts the workplace will soon become the rule, rather than the exception. So, says the blogger.
- Reassess your job descriptions and determine whether a physical presence in the office is an essential job function. And, if you update the job description accordingly, make sure that it accurately reflects how job duties are actually best discharged. Get feedback from your managers and employees.
- If you are going to allow some employees to telecommute, courts may assume that telecommuting would be a reasonable accommodation for other disabled employees. just be prepared for that.
I’ll lay 2-1 that Jon Hyman will have a post on this case today at his blog. So, be sure to check that out.
This was originally published on Eric B. Meyer’s blog, The Employer Handbook.