Telecommuting & the Modern Workplace Under the ADA: Sixth Circuit Redefines Workplace and Expands Reasonable Accommodation Obligation
In the context of the Americans with Disabilities Act (ADA), the workplace and an employer’s brick-and-mortar location are no longer synonymous. Although courts vary with respect to telecommuting as a reasonable accommodation under the ADA, courts are recognizing that technological advances have expanded the class of jobs for which working from home may be reasonable. Recently, in EEOC v. Ford Motor Co., 2014 U.S. App. LEXIS 7502 (6th Cir. April 22, 2014), the Sixth Circuit held that attendance at the workplace can no longer be assumed to mean attendance at the employer’s physical location. The court explained that when considering an employee’s accommodation request for a work-from-home arrangement, the vital question is not whether “attendance” is an essential job function, but whether “physical presence” at the employer’s facility is truly essential. Because this decision may signal the start of a trend in redefining the modern workplace for purposes of the ADA, employers should be mindful of the following key points when faced with an employee’s accommodation request for a work-from-home arrangement:
- Teamwork is not inherently unsuitable for a telecommuting arrangement because “attendance” and “physical presence” at the employer’s facility are not synonymous
In Ford Motor Co., Ford argued that physical attendance at the Ford workplace was critical to the group dynamic of plaintiff’s position. The plaintiff, a resale buyer at Ford, suffered from irritable bowel syndrome and requested to participate in Ford’s telecommuting program up to four days a week. Ford’s telecommuting policy authorized employees to work up to four days per week from a telecommuting site, however, the policy specifically stated that such an arrangement was not appropriate for all jobs within Ford. Under this policy, Ford allowed several other resale buyers to telecommute one scheduled day per week.
Ford offered evidence that although the plaintiff’s position involved some individual tasks, the essence of the job was group problem-solving, which required that a buyer be available to interact with members of the resale team, suppliers and customers. Ford managers made the business judgment that such meetings were most effectively handled face-to-face, and that email or teleconferencing was an insufficient substitute for in-person team problem-solving. Consequently, Ford denied the plaintiff’s request to telecommute citing attendance and teamwork as essential functions of her position. Instead, Ford offered plaintiff alternative accommodations, such as moving plaintiff’s cubicle closer to the restroom or reassigning plaintiff to another job within Ford that was more suitable for telecommuting. The plaintiff rejected each of these options. Subsequently, the plaintiff’s performance declined and Ford terminated her employment.
In reversing the grant of summary judgment for the employer, the court held that telecommuting may be a reasonable accommodation even when attendance and teamwork are essential functions of the position. Although the court recognized that physical presence at an employer’s facility may be an essential function for some positions specifically because they require extensive teamwork, the court explained that advancing technology has diminished the necessity of in-person contact to facilitate group conversations. The court stated:
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 the job duties. . . . The world has changed since the foundational opinions regarding physical presence in the workplace were issued: teleconferencing technologies that most people could not have conceived of in the 1990s are now commonplace. . . . Therefore, we are not persuaded that positions that require a great deal of teamwork are inherently unsuitable to telecommuting arrangements.
- An employer’s preference for face-to-face interaction does not necessarily make it an essential function of an employee’s position
While face-to-face interaction may be desirable to an employer, it will not necessarily be considered essential to a position. For example, if a vast majority of communications and interactions with clients and coworkers are done via conference call or email, an employer will be hard-pressed to assert that physical attendance at the employer’s facility is necessary to perform the position.
- Determining whether “physical presence” is essential to a particular job is a highly fact specific question
The burden is on the employer to prove that physical presence in the workplace is an “essential function” of the employee’s position. Courts consider several factors, including: (1) written job descriptions (click here to see our earlier post regarding best practices for job descriptions); (2) the business judgment of the employer; (3) the amount of time spent performing the function; and (4) the work experience of past and present employees in the same or similar positions.
In Ford Motor Co., Ford argued that a telecommuting arrangement was generally not a reasonable accommodation for employees in plaintiff’s position because they must interact on a regular basis with other team members and access information that is unavailable during “non-core” business hours. In rejecting this argument, the court explained that Ford’s argument confused remote work arrangements with flex-time arrangements. The court acknowledged that requests for flex-time schedules may be unreasonable because businesses cannot “operate effectively when [their] employees are essentially permitted to set their own work hours.” The court distinguished telecommuting stating that it did not raise the same concerns as flex-time scheduling because an employer can still rely on an employee to be working during scheduled hours. The court explained that the plaintiff did not request to simply miss work whenever she felt she needed to; rather, she requested that she be able to work from home when she felt she needed to during normal business hours. Thus, the arrangement the plaintiff sought ensured that she would be available when needed to address an emergency or participate in an impromptu meeting. The court discounted Ford’s concern with scheduling meetings and knowing who could be relied upon to handle urgent matters, explaining that the latter did not depend on the plaintiff’s physical presence in the office, but rather on her consistent availability during “core” hours.
- If an employer has a telecommuting policy, but the employee’s request exceeds the policy, an employer must still engage in the interactive process
Ford also argued that telecommuting was not a reasonable accommodation for the plaintiff compared to other employees in her position, because her request to telecommute for such a large portion of the work week was unreasonable and her previous attendance issues demonstrated she was not a suitable candidate for telecommuting. The court held that if Ford objected to the plaintiff’s request to telecommute for “up to four days per week,” it was Ford’s responsibility to engage in an interactive process to explore reasonable alternatives. It is worth noting that Ford did offer the plaintiff two alternate accommodations, however, the court concluded that Ford’s proposed accommodations were not reasonable under the facts. Rather, the court suggested that Ford should have engaged in discussions with the plaintiff to determine if a lesser amount of telecommuting time would have been a reasonable accommodation (i.e., two days of telecommuting rather than four days).
- Inconvenience and de minimis costs are not enough to establish undue hardship
Under the ADA, an employer is not required to make reasonable accommodations that would impose an undue hardship on the employer. The burden is on the employer to prove an undue hardship. Whether an accommodation will impose an undue hardship is determined on a case-by-case basis. Courts consider several factors when determining whether an accommodation imposes an undue hardship on an employer: (1) the nature and cost of the accommodation; (2) the financial and personnel resources of the affected facility; (3) the resources of the employer as an entity; and (4) the structure and functions of the employer’s workforce.
In Ford Motor Co., the court held that inconvenience was not sufficient to demonstrate undue hardship, explaining: “[w]e may assume that any accommodation would entail some hardship on the Company, but . . . . undue hardship is something greater than hardship, and an employer does not sustain his burden of proof merely by showing that an accommodation would be bothersome to administer or disruptive of the operating routine.” Further, although setting up a home workstation for the plaintiff might have entailed some cost, the court considered Ford’s financial resources and the size of its workforce, in determining that this cost was likely to be de minimis.