We seem to be hearing a lot about the concept of telecommuting — and all the attendant legal issues. Sounds like a topic for The Emplawyerologist! Over the next few weeks we will see if we can get a good grip on what we as employers (or people who work with employers) need to know about the legal implications of telecommuting arrangements. Now, we can’t talk about this topic and ignore the most recent federal court case holding that telecommuting may be a reasonable accommodation under Title I of the Americans with Disabilities Act, so, let’s make that our starting point! Join The Emplawyerologist after the jump so we can start this fascinating new theme! Last month, the 6th Circuit Court of Appeals (covering Kentucky, Michigan, Ohio and Tennessee) decided EEOC v. Ford Motor Company Case No. 12-2484 (April 22, 2014). Is it true the court held that now employers may have to allow telecommuting under the ADA or is that just hysteria and hype—or maybe a bit of both? First, let’s briefly look at the facts of the case. Jane Harris was a resale steel buyer for Ford. She suffered debilitating symptoms of Irritable Bowel Syndrome (IBS). In an attempt to perform her job and control her symptoms, Harris asked to be allowed to work from home several days a week. Resale steel buyers are intermediaries between steel suppliers and companies manufacture steel parts for Ford. Harris’ job was to respond to emergency supply issues to ensure there is no gap in steel supply to parts manufacturers. Her main job function was “group problem-solving”, which required availability to interact with the members of the resale team, suppliers and others at Ford, when a problem arose. Ford’s managers had made a business judgment that such meetings were best handled face-to-face, and that emails and teleconferencing were insufficient substitutes for in-person problem-solving. As Ms. Harris’ symptoms worsened her supervisor allowed her to work on a flex-time commuting schedule on a trial basis, but found it unsuccessful, because Harris was unable to establish regular and consistent work hours. The absences continued. Ford offered to either move her cubicle closer to the women’s rest room or find her a position more suitable for telecommuting. Harris rejected both offers.
Ford eventually terminated Harris, who filed a charge with the EEOC. The EEOC ultimately sued Ford on Harris’ behalf. Ford moved for summary judgment, which the US District Court in Michigan granted, thereby dismissing the case. The EEOC appealed. Did the 6th Circuit rule that Ford had to allow Harris and others in her situation to telecommute? Not exactly. Basically Ford argued that none of the essential facts were in dispute and that the matter could be decided by a judge applying the law, which works in Ford’s favor. The 6th Circuit however, disagreed, finding that there were enough significant facts that were in dispute. Specifically, the appellate panel felt that there were significant factual issues as to whether Harris could in fact perform the essential functions of her job if she was allowed to work from home. The court therefore sent the case back to the US District Court (the federal trial court) to determine that issue.
Now that we have the background, we can see that a) the 6th Circuit did not find that Harris could in fact perform the essential functions of her job at Ford; b) the 6th Circuit did not determine that telecommuting was in fact a reasonable accommodation in Harris’ situation. The 6th Circuit did what many courts in this situation did. It erred on the side of caution by not dismissing a case where there were or could be significant facts in dispute and sent it back to the trial court. If the case does not settle, then a jury will decide the facts and render a verdict. The 6th Circuit did say that telecommuting could be a reasonable accommodation under certain circumstances, and that it is possible that it could have been a reasonable accommodation for Harris. If so, Ford would have been obligated to provide it to Harris and in not doing so, would have been in violation of the ADA. If nothing has been decided, what’s with all the worry? Previously the 6th circuit (and the 7th and other circuits) have held that telecommuting would be a reasonable accommodation only under exceptional circumstances. Employers have relied upon those holdings. Traditionally, courts have deferred to employers’ definition of a job’s essential functions, and have acknowledged that attendance is often an essential job function. This case could signal a change and, for a time, a lot of unknowns as employers struggle to figure out if and when they must accommodate an employee who asks to be allowed to telecommute. Previous cases though, were decided before technology really made it possible to perform essential job functions from a remote location. The 6th Circuit emphasized this point, and indicated that employers might need to be open to a more expansive definition of the “workplace” and “attendance”. This is the main reason for the worry. Telecommuting, particularly if done on a large scale can trigger other legal and practical issues (which we will examine in upcoming posts). So, in light of this new ruling, here are a few do’s and don’t’s:
- Don’t confuse attendance with physical presence. Technology now makes it possible to do many jobs from anywhere, rendering physical presence in one particular building less critical to performance of certain jobs.
- Don’t confuse telecommuting with flextime; telecommuting is about where the job is done, flextime is about when it’s done.
- Take all telecommuting requests seriously and engage in the interactive process;
- Offer truly reasonable — and feasible–alternative accommodations; The 6th Circuit felt Ford’s offer to move Harris’ cubicle was inadequate, because she still might not make it to the restroom in time and should not have to risk soiling herself in front of her co-workers. As for the alternate job offer, the court found no evidence that an alternate job was actually available.
- Provide clear job descriptions. If physical presence is necessary, be clear as to why. Some jobs still cannot be done remotely. Many health care positions, such as nurses, doctors or medical technicians are a key example. Cashiers and stock clerks are other examples. Jobs such as those and many others are not likely to be impacted by this or similar court cases.
- Document your responses to telecommuting requests and include your reasons.
- Document the cost of establishing and monitoring an effective telecommuting program.
- Remember that if, under the circumstances, telecommuting is not a reasonable accommodation, you do not have to allow it.
Other circuits aside from the 6th, have ruled in favor of telecommuting and some states have either passed or introduced legislation allowing if not requiring it. In other words, the issue is not going away, so consider the above points and speak with competent employment counsel! Aren’t there potential safety and liability issues involved in telecommuting? We’ll talk about that next week!
Meanwhile if you can ignore the plug for Novell, here’s a cute clip on the joys and terrors of telecommuting:
Disclaimer: This post’s contents are for informational purposes only, are not legal advice and do not create an attorney-client relationship. Always consult with competent local employment counsel on any issues discussed here.
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