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Sixth Circuit decision is a road map for navigating telecommuting as a reasonable accommodation

May 14th, 2014  |  Joy Waltemath

By Joy P. Waltemath, J.D.

In April, the Sixth Circuit reversed summary judgment for Ford Motor Co. on the EEOC’s claim that Ford had failed to reasonably accommodate its employee’s request to telecommute part-time to address flare-ups of her irritable bowel syndrome (IBS), a condition that can cause fecal incontinence (EEOC v Ford Motor Co). Ford fired the employee from her position as a resale steel buyer after she asked to telecommute for up to four days per week in an attempt to control her IBS symptoms.

Employers are particularly concerned that the Sixth Circuit walked back its earlier pronouncement that telecommuting was not a reasonable accommodation for most jobs; it found instead that “the class of cases in which an employee can fulfill all requirements of the job while working remotely has greatly expanded.” Despite some well-publicized retractions of the privilege, telecommuting is a growing phenomenon. Telecommuting reportedly has risen 79 percent between 2005 and 2012, according to the Census Bureau’s American Community Survey. Yet full-time employees who work from home at least half the time (and are not self-employed) make up only 2.6 percent of the American work force, or about 3.2 million workers. Regardless of employers’ legitimate concerns, the Sixth Circuit opinion can be read as a roadmap for how to handle telecommuting as a reasonable accommodation.

Don’t confuse attendance with physical presence

The Sixth Circuit majority found that the employee (here aided by the EEOC) had evidence that she was “otherwise qualified” for her resale steel buyer position either if “physical presence at Ford facilities” was not an essential job function or if she were provided with a telecommuting accommodation. In the majority’s view, Ford kept confusing physical presence with regular attendance, pointing out that given advances in technology and the evolving nature of work, the “workplace” is anywhere that an employee can perform her job duties.

Is face-to-face physical presence necessary? Clearly teamwork was critical, and Ford believed face-to-face interactions facilitate group problem-solving. But, in an approach that employers continue to find unsettling, the Sixth Circuit was unwilling to defer wholesale to Ford’s business judgment that her physical presence was essential. The employee had evidence that experientially seemed to ring true: She said even when she was on-site at Ford, “the vast majority of communications and interactions with both the internal and external stakeholders were done via conference call.” Plus, when she had to conduct site visits, she also was not physically present in Ford’s workplace.

Is telecommuting a reasonable accommodation?

Something the Sixth Circuit said that has caused a lot of consternation is that, since it first pronounced in 1997 that telecommuting was not a reasonable accommodation for most jobs, “the class of cases in which an employee can fulfill all requirements of the job while working remotely has greatly expanded.” Here it found the employee had enough evidence to create a genuine fact dispute over whether her job was one that could effectively be performed at least part-time from home.

Don’t confuse telecommuting with flex-time. Ford said that telecommuting could not be a reasonable accommodation because resale buyers had to “interact regularly with other team members and access information that was unavailable during non-core business hours.” But the court believed Ford was confusing flex-time with telecommuting. Here the employee had specifically requested the option to telecommute during normal business hours. Ford’s stated concerns did not depend on her physical presence in the office, but rather on her consistent availability during “core” hours. The court found that Ford lacked evidence that a telecommuting arrangement, as opposed to a flex-time arrangement, was inherently problematic.

Engage in the interactive process on telecommuting requests. Ford also argued that, given the employee’s prior absences, her request to telecommute for up to four days a week was unreasonable. To that, the court countered that it was Ford’s obligation to engage in the interactive process to explore alternative accommodations, especially where the employee indicated she would accept one or two days a week as an alternative. Plus, Ford could not use the employee’s past attendance issues as a reason to deny her an accommodation because her absences were related to her disability, flare-ups of her IBS.

Offer truly reasonable alternative accommodations. Employers are also likely to be troubled by the Sixth Circuit’s finessing of the fact that Ford offered, and the employee rejected, two alternative accommodations: moving her cubicle closer to the restroom and finding an alternative position “more suitable” to telecommuting. But the court found there was a genuine fact question as to whether those alternatives adequately accommodated the employee’s disability.

Merely moving her to a cubicle closer to the restroom did not fully accommodate her disability, stated the court, if during IBS episodes she had no control over her bowels for the time it would take to reach the restroom. Nor did the majority think it reasonable to expect an employee “to suffer the humiliation of soiling herself on a regular basis in front of her coworkers, 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, pointedly rejecting the dissent’s approach. As for Ford’s  offer to find her an alternate job that was more amenable to telecommuting, there was no guarantee that such a position would be forthcoming, the court remarked, and anyway, reassignment is only considered “when accommodation within the individual’s current position would pose an undue hardship,” and that was not the case here.

Lessons for employers

Employers can use the Sixth Circuit opinion as a roadmap to handling telecommuting accommodation requests:

  1. Treat every request for telecommuting as an accommodation seriously. At least in this circuit, the class of jobs for which telecommuting as an accommodation is per se unreasonable just got a lot smaller.
  2. Don’t confuse “physical presence in the workplace” with regular attendance. Telecommuting employees have to come to work every workday, just as do employees who work on-site. Regular attendance is a pretty much an essential job function for both. A request to telecommute is not a request for leave or extra time off. As for face-to-face communication, be honest: to how many meetings do participants dial-in? How much business (or teamwork, or problem-solving) is conducted by phone or email vs. face-to-face?
  3. Don’t confuse telecommuting with flex-time. Again, while telecommuting may include flexible hours, it certainly does not have to. If an employee’s availability during normal business hours is an essential job function, that fact does not necessarily preclude a telecommuting arrangement. Similarly, flex-time may also be a reasonable accommodation, whether an employee is on-site or working remotely. For purposes of investigating a reasonable accommodation, a certain level of precision is important.
  4. Engage in the interactive process on the accommodation request. No matter how off-the-wall an employee’s accommodation request appears initially, employers are only going to help themselves if they engage – carefully and without making promises – in the interactive process. Have a serious, good-faith discussion; this is even more important if the employee is trying to overreach. You want the equities in your favor.
  5. Make sure your alternative accommodations are not illusory. Moving the employee’s cubicle closer the restroom may or may not have been an illusory accommodation. What is “closer” to the restroom, anyway? If incontinence could result simply from standing up, would this truly have been a reasonable accommodation? Similarly, “finding an alternative position within Ford more suitable for telecommuting” may also have been illusory; there was no actual position ever offered. As for the dissenting judge’s suggestion that “Depends” and a change of clothes could make this alternative accommodation reasonable, it’s not a bad idea to consider the reasonableness of an accommodation by first asking how you might perceive it were it to be offered to your spouse or parent, and second by considering how it might play before a jury.