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Telecommuting may be reasonable accommodation for employee with IBS; court cites “greatly expanded” class of jobs amenable to telework

By Lisa Milam-Perez, J.D.

A telecommuting arrangement could be a reasonable accommodation for an employee suffering from irritable bowel syndrome (IBS), a divided Sixth Circuit panel held, reviving the EEOC’s ADA claims brought on behalf of a Ford Motor employee who was terminated shortly after requesting to work from home a few days each week. Citing technological advances, and cautioning against conflating telecommuting and “flextime,” the majority found genuine fact disputes as to whether the employee was qualified for her position as a resale steel buyer and whether she was fired in retaliation for filing an EEOC charge. Thus, it reversed summary judgment in Ford’s favor on the EEOC’s failure-to-accommodate and retaliation claims (EEOC v Ford Motor Co, April 22, 2014, Moore, K).

“Workplace” may be anywhere.” In its 2004 holding in Brenneman v. MedCentral Health Sys, the Sixth Circuit had concluded that telecommuting is not a reasonable accommodation for most positions. Back in 1997, it observed in Smith v Ameritech that there were “unusual” cases in which an employee can effectively do the job from home, making telecommuting reasonable. Here, the majority noted, “the class of cases in which an employee can fulfill all requirements of the job while working remotely has greatly expanded.” It added: “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.”

“[W]e are not rejecting the long line of precedent recognizing predictable attendance as an essential function of most jobs,” the majority emphasized. “Nor are we claiming that, because technology has advanced, most modern jobs are amenable to remote work arrangements… We are merely recognizing that, given the state of modern technology, it is no longer the case that jobs suitable for telecommuting are ‘extraordinary’ or ‘unusual.’”

Unintended consequences? “[I]t bears mentioning the unfortunate impact that this case will have on employees working for companies in this circuit,” Judge McKeague wrote in dissent. “The lesson for companies from this case is that, if you have a telecommuting policy, you have to let every employee use it to its full extent, even under unequal circumstances, even when it harms your business operations, because if you fail to do so, you could be in violation of the law. Of course, companies will respond to this case by tightening their telecommuting policies in order to avoid legal liability, and countless employees who benefit from generous telecommuting policies will be adversely affected by the limited flexibility. Especially in light of the fact that our precedent counsels otherwise, I find this outcome regrettable.”

Excessive absences. As a buyer on Ford’s raw material team, the employee purchased and resold steel to suppliers that manufactured and supplied vehicle parts to the automaker’s assembly plants. The position involved some individual tasks, such as updating spreadsheets, but the job also was highly interactive, requiring the employee to work as the intermediary with suppliers to problem-solve and avoid disruptions in the supply chain. It entailed periodic site visits to observe the production process and, in the business judgment of Ford’s managers, the problem-solving meetings were most effectively handled face-to-face as well.

The employee suffered from IBS throughout her employment with Ford but her symptoms worsened over time and, on especially bad days, she wouldn’t be able to drive to work or stand up at her desk without soiling herself. She began to take intermittent FMLA leave when she experienced severe IBS symptoms. The employee’s absences eventually began to affect her performance, and her supervisor responded by letting her work on a flex-time telecommuting schedule on a trial basis. However, she was unable to establish regular and consistent work hours, so the trial was deemed unsuccessful. Nonetheless, although Ford did not approve remote work, the employee worked from home on an ad hoc basis, including nights and weekends, to keep up with her duties. But Ford did not credit her for the time spent working during non-“core” hours, deeming these efforts “casual overtime” typically expected of salaried employees. Also, the company marked the days that she stayed home because of her illness as absences, taking the stance that if the employee “was too ill to come to work,” she was “too ill to work.” Under this system of recording absences, in the first seven months of 2009, the employee was absent more often than she was present during core business hours.

Ford also explained that the work performed by the employee outside of core business hours was not a sufficient substitute for work during regular hours because she could not engage in team problem-solving or access suppliers to obtain information during off-hours. As a result, the employee made errors — which exacerbated the frustration of both suppliers and coworkers, who had to take time to correct them, according to Ford. The off-hours work also meant that the employee’s supervisor had to shift some of her duties to her coworkers, or perform some tasks himself.

Formal telecommuting request. Believing that being permitted to work from home would relieve her stress and alleviate her IBS symptoms, the employee formally requested in 2009 that she be permitted to telecommute on an as-needed basis as an accommodation for her disability. Ford’s formal telecommuting policy authorized employees to work up to four days per week from a telecommuting site. The policy provided that all salaried employees were eligible, but specifically stated that telecommuting was not appropriate for “all jobs, employees, work environments or even managers.” Several other buyers telecommuted on one scheduled day per week under the policy, though. But the employee’s supervisors discussed her job requirements and concluded that her position was not suitable to telecommuting. Thus, Ford denied the request.

An HR rep suggested several alternative accommodations, including moving her cubicle closer to the restroom or seeking another job at the company more suitable for telecommuting, but the employee rejected these options. Meanwhile, her performance worsened (at least in the eyes of her superiors), and she was placed on a 30-day performance improvement plan. Because she had not improved by the end of the period, management terminated her.

The EEOC filed suit. The district court granted summary judgment to Ford, concluding that the employee was not an “otherwise qualified” individual in light of her excessive absenteeism and declining to second-guess Ford’s business judgment that her telecommuting request was unreasonable.

Physical presence an essential function? It was undisputed that the employee had a disability within the meaning of the ADA; at issue was whether she was otherwise qualified to perform the essential job functions of her resale buyer position, the Sixth Circuit noted on appeal. The EEOC presented evidence that the employee was qualified for the position after eliminating the requirement that she be physically present at Ford facilities or, alternatively, she was qualified for the job with a telecommuting accommodation. After all, in the years leading up to her discharge, she had earned consistently positive performance reviews; Ford’s only beef with her performance was related to her absences during severe IBS flare-ups. “Leaving attendance issues aside,” the appeals court noted, there was no evidence the employee lacked the qualifications for the position. Thus, the burden then fell on Ford to establish that its physical-presence requirement was an essential function of the buyer position or that the telecommuting accommodation would create an undue hardship. ”Ford cannot indisputably carry its burden,” the appeals court held.

“For many positions, regular attendance at the work place is undoubtedly essential,” the majority acknowledged — and conceded the “litany of cases” cited by the dissent to this effect. “What the dissent fails to recognize is that these cases focus on ‘predictable’ and ‘regular’ attendance in the workplace as an essential requirement of most jobs,” the majority continued. “The assumption implicit in the dissent’s analysis and many of the early cases is that the ‘workplace’ is the physical worksite provided by the employer.”

“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.”

Thus, wrote the court, the “vital question” here is not whether “attendance” is an essential job function for a resale buyer, “but whether physical presence at the Ford facilities was truly essential.” That’s a “highly fact-specific” question, the court observed, guided by several factors including not only the employer’s business judgment, but written job descriptions, the amount of time spent performing the function, and the work experience of past and present employees in the same or similar positions.

Teamwork-by-Skype. Ford contended that physical attendance at the Ford workplace was critical to the group dynamic of the resale buyer team. Other circuits have recognized that physical presence on-site may be an essential function for positions that require extensive teamwork, the majority observed, and Ford provided evidence that teamwork was integral to the resale buyer position. “However, as we have discussed, advancing technology has diminished the necessity of in-person contact to facilitate group conversations. 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,” according to the majority. “Therefore, we are not persuaded that positions that require a great deal of teamwork are inherently unsuitable to telecommuting arrangements.”

Business judgment just one factor. In addition, the appeals court acknowledged that several members of Ford’s management team expressed their business judgment that physical attendance was essential for resale buyers because face-to-face interactions facilitated group problem-solving. But, the court said, “our inquiry does not end simply because Ford has expressed the business judgment that face-to-face interaction is desirable.” While courts routinely defer to the business judgment of employers, “we should not abdicate our responsibility as a court to company personnel boards. While we do not allow plaintiffs to redefine the essential functions of their jobs based on their personal beliefs about job requirements, neither should we allow employers to redefine the essential functions of an employee’s position to serve their own interests. Rather, we should carefully consider all of the relevant factors, of which the employer’s business judgment is only one.”

While Ford provided substantial evidence of its business judgment that telecommuting was unfeasible for its resale buyers, the EEOC offered evidence casting doubt on the importance of face-to-face interactions at Ford, including the employee’s own experience over several years as a resale buyer which suggested that in-person interaction may not be as important as Ford describes — specifically, evidence that “the vast majority of communications and interactions with both the internal and external stakeholders were done via conference call.” More fundamentally, in the court’s view, the employee’s position was not one that actually required face-to-face interaction with clients. For example, the requirement that resale buyers conduct site visits had no effect on whether physical attendance at the Ford office was an essential function of the position, the majority observed in a footnote. “A site visit requires the resale buyer to leave the location where she ordinarily works, whether it be a Ford facility or the employee’s home.”

Telecommuting vs. “flex” time. In addition to showing that the employee was able to perform the essential job functions save the physical presence requirement, the EEOC alternatively established a genuine issue of fact as to whether she was qualified for the resale buyer position with a reasonable accommodation, namely a telecommuting arrangement. Ford argued that telecommuting was generally not a reasonable accommodation for resale buyers because they must access information that is unavailable during non-“core” business hours. But this argument “confuses remote work arrangements with flex-time arrangements,” the court said. “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.’ Indeed, leave on a sporadic or unplanned basis may be an unreasonable accommodation.”

Telecommuting did not raise the same concerns posed by flex-time scheduling, though, the court reasoned. Indeed, the employee here did not request to “simply miss work whenever she felt she needed to and apparently so long as she felt she needed to.” Rather, she asked to “be able to work from home when she felt she needed to during normal business hours.” Ford’s concern with scheduling meetings and knowing who could be relied upon to handle urgent matters did not depend on the employee’s physical presence in the office, but rather on her consistent availability during “core” hours. Also, Ford noted that the employee had made pricing mistakes while working remotely because she could not immediately contact a supplier for accurate information. But that mistake, too, arose because Ford prohibited the employee from working remotely during core business hours, when she could telephone suppliers to request accurate pricing information. “Her physical presence at Ford was irrelevant: Whether working from Ford’s facilities or from home, [she] would have called the supplier to obtain the necessary information. Ford has not provided any evidence that a telecommuting arrangement, as opposed to a flex-time arrangement, is inherently problematic.” Moreover, the employee’s previous trial attempt at an alternative work arrangement was in fact based on a “flex-time” arrangement, so that failed experiment could not be used as an excuse not to consider a telecommuting accommodation.

Interactive process. Ford also argued that the employee’s request to telecommute for such a large portion of the work week was unreasonable compared to the one-day-per-week arrangement allowed to her coworkers. If Ford objected to the request to telecommute for “up to four days per week,” though, it was Ford’s responsibility to engage in an interactive process to explore reasonable alternatives. The employee was willing to discuss alternative accommodations, including a telecommuting arrangement for as few as one to two days per week, the court observed. “Ford’s failure to engage in that discussion is not evidence that a telecommuting arrangement in any form was unreasonable.”

Ford contended too that the employee’s previous attendance issues demonstrated she was not a suitable candidate for telecommuting. But the EEOC presented evidence that the employee’s past attendance issues were related to her IBS flare-ups, and Ford could not rely on past disability-related attendance issues to disqualify her from telecommuting or use past attendance problems as a rationale to deny a telecommuting accommodation.

Alternative accommodations. The majority also rejected Ford’s argument that even if the employee’s request for a telecommuting arrangement was reasonable, she is not “otherwise qualified” because she rejected alternative reasonable accommodations offered by the company. Ford offered to move her cubicle closer to the restroom. But the employee testified that she might soil herself merely by standing up from her desk, so moving her to a cubicle closer to the restroom would not address her needs if she has no control over her bowels for the time it would take to reach the restroom, the court reasoned.

Ford also offered to find her an alternate job with the company that was more amenable to telecommuting. But there was no guarantee that such a position would be forthcoming, the court said. At any rate, reassignment is only considered “when accommodation within the individual’s current position would pose an undue hardship,” the court noted, and that was not the case here. “Thus, although the employer ordinarily has the option of choosing an accommodation from among reasonable options, Ford was not entitled to force [the employee] to accept an alternative position in this case because the telecommuting arrangement proposed [ ] was a reasonable means of accommodating her disability.”

No undue hardship. Ford failed to meet its burden of showing without question that a telecommuting accommodation would pose an undue burden. Although setting up a home workstation might entail some cost, “considering Ford’s financial resources and the size of its workforce, this cost is likely to be de minimis.” Indeed, the majority observed, Ford’s written policy pledges to absorb these costs for all employees approved for telecommuting; thus, it could not meet its burden of proving that a telecommuting accommodation, even if reasonable, would create an undue hardship.

Thus, responding “to the world as it exists now,” the majority held a genuine dispute of material fact remained as to whether the employee could perform the functions of her position from a remote location. Accordingly, summary judgment in Ford’s favor was reversed on the EEOC’s failure-to-accommodate claim.

Dissent: “No new technologies.” “I agree with the majority that teleconferencing is more commonplace today, and that the class of jobs in which all duties can be done at home has likely increased over the last few years,” noted Judge McKeague, dissenting. “However, the fact that some other jobs may now fit these criteria does not help the EEOC’s case, because such abstractions do not transform the resale buyer position into one of the jobs in which all duties may be done from home.”

“The majority holds that a telecommuting arrangement allowing an employee to telecommute four out of five days of the workweek on a spur-of-the-moment, unpredictable basis is a reasonable accommodation under the ADA for a position that involves routine face-to-face interactions,” McKeague continued. “The stated law of this circuit, however, is that attending work on a regular, predictable schedule is an essential function of a job in all but the most unusual cases, namely, positions in which all job duties can be done remotely.”

“I cannot identify anything in the record evidencing a change in the world, let alone anything in the majority opinion explaining how it is a new world in relation to this employee,” the dissent noted. The EEOC contended that most of the employee’s work could be done using email or computers, and the employee said she could interact with stakeholders via conference call. And while the majority dismissed circuit precedent in Ameritech and Brenneman on the basis that these were “early cases,” McKeague noted, “it cannot be said that email, computers, or conference call capabilities were not available in 1997 or 2004, when these cases were decided. No new technologies are identified by the EEOC or the majority because none are implicated by the facts of this case. As to whether anything has specifically changed in the world with respect to this job in the years since Ameritech and Brenneman were decided, I can only conclude that the answer is no.”

Telecommuting policy. McKeague lamented the majority’s reliance on Ford’s telecommuting policy, and Ford’s approval of a far more limited telecommuting schedule for other resale buyers, as evidence that telecommuting was a reasonable accommodation in this case. “The difference between one or two days versus four days speaks for itself,” according to the dissent. Also, “[i]t bears mentioning that Ford’s telecommuting policy makes clear that telecommuting is not an entitlement and that a specific telecommuting schedule unique to each employee must be approved in advance.”

“Even the EEOC’s own guidance,” McKeague noted (citing the agency’s directive on Employer Best Practices for Workers with Caregiving Responsibilities), “recognizes that an employer is justified in refusing a telecommuting request when, among other things, it would be difficult for a telecommuting employee to participate in frequent ‘impromptu team meetings’ to address ongoing developments.” Yet, “[i]nstead of acknowledging this commonsense notion, or affording deference to Ford’s business judgment, the majority does precisely what it claims not to do: it acts as a ‘super personnel department,’ deciding which positions actually require face-to-face interactions and which do not.”

McKeague also rejected as “self serving” the employee’s personal opinion that her work could be done via telecommuting, and argued such evidence was insufficient to raise a genuine issue of fact. “There is a good reason courts ‘are reluctant to allow employees to define the essential functions of their positions based solely on their personal viewpoint and experience.’ This is because any employee could provide a court with ‘self-serving testimony’ that her job was amenable to telecommuting. [The employee’s] subjective opinion lacks any support in the record, as the universal judgment of all of Ford’s managers and the other resale buyers refutes what [she] claims.” (The majority countered, however, in a footnote: “the dissent fails to recognize that an employer can just as easily provide self-serving testimony that even marginal job functions are absolutely essential.”)

“Without requiring more evidence than a plaintiff’s self-serving testimony, the majority has dramatically reduced what a plaintiff must show in order to withstand a summary judgment motion in an ADA discrimination claim,” the dissent asserted.