While the concept of telecommuting (allowing employees to work from home) is not a new one, a recent court decision from a neighboring jurisdiction provides instruction to employers who are faced with a request from an employee seeking to telecommute as an accommodation. In EEOC v. Ford Motor Co., the United States Court of Appeals for the Sixth Circuit held that where regular, in-person attendance at the work site is an essential function of the job, telecommuting is not a reasonable accommodation under the Americans with Disabilities Act ("ADA").
In Ford, the claimant was a Ford employee who acted as an intermediary between steel suppliers and parts manufacturers. This position was highly interactive, requiring electronic, telephonic, and face-to-face interaction and problem solving. The claimant’s managers stated that regular and predictable on-site attendance was essential to her position.
The claimant developed irritable bowel syndrome, giving her uncontrollable incontinence with scant advance notice of the onset of symptoms, which interfered with her commute to work, limited her mobility in the office, and created stress. Ford had, pursuant to its telecommuting policy, allowed other employees to telecommute. In earlier attempts to accommodate the claimant, Ford permitted her to telecommute on a limited ad hoc basis, but Ford considered these attempts unsuccessful since she was unable to perform the objectives of her job and she was unable to establish regular and consistent hours. Still, the claimant requested to telecommute up to four days per week. Ford met with her, reviewed her primary job responsibilities with her, and determined that telecommuting would not enable her to perform the essential duties of her position. So, Ford denied her request, but offered accommodations of a work area closer to the restroom or a transfer to other jobs that were more conducive to telecommuting. The claimant rejected the alternate accommodations. The claimant’s job performance continued to decline and she filed a charge with the EEOC alleging that Ford failed to accommodate her in violation of the ADA. The EEOC sued Ford on the claimant’s behalf.
In resolving the claim, the Sixth Circuit examined prior precedent which states the general rule that attendance at work on-site is an essential function for many positions, particularly interactive ones. The court also considered the ADA and its regulations, which state that essential functions are those that the employer deem essential, such as through the written job description and the employer’s judgment when describing what is required in a given position. Other evidence of an essential function includes: the time spent performing the function; the consequences of not performing the function; the terms of applicable collective bargaining agreements; and the work experience of people who previously performed the position or who worked in similar positions. A reasonable accommodation may include, among other things, job restructuring; however, it does not include removing essential functions from the position, as that would be per se unreasonable. The court also considered the EEOC’s informal guidance on the matter, which states that the need for in-person interaction and coordination of work and immediate access to information located only in the workplace may be legitimate reasons for an employer to deny telecommuting as an accommodation.
The court determined that the claimant was not a qualified individual with a disability because she could not regularly and predictably attend the workplace. The court agreed that regular, in-person attendance is both an essential function of and a prerequisite to other essential functions of the claimant’s position. Accordingly, the claimant’s telecommuting request was unreasonable because it would have removed at least one essential function of her position. The court rejected the EEOC’s position that "technology has advanced" so far as to permit employees to perform at least some essential job functions from home and noted that, while that may be true in the abstract, it was not true in this case. The court acknowledged that Ford uses email, computers, telephone, audio conferencing, and limited video conferencing. Nonetheless, that use and other employees’ telecommuting situations did not require a change in claimant’s position.
Though this case is not binding in Pennsylvania, it is instructive because the analysis for what constitutes an essential job function and a reasonable accommodation remains the same. While no Pennsylvania court has squarely addressed this issue, they have determined that, depending on the position, a regular, physical presence in the workplace can be an essential function of the position.
So what lessons can be learned from the court’s decision in this case? First, employers should be mindful of the ways which they permit their employees to perform their job duties with the assistance of technology. Use it where it can create efficiencies in the work environment, but do not give its effectiveness more credence than it is due. The ADA does not require employers to offer telecommuting to all employees; however, doing so with some employees may make it more difficult for an employer to argue that doing so as an accommodation would create an undue burden. Second, if regular, on-site attendance is an essential job function for a particular position, then make that clear in the job description or separate policy. If an employer does offer telecommuting, a written telecommuting policy outlining who is eligible and the parameters of the program will be important to an employer who is faced with a telecommuting accommodation request. Parameters that should be considered include trial periods and a requirement that in order to be eligible for telework, the employee exhibit strong work performance and the employer has the ability to supervise remotely performed work. Clearly-defined and accurate job descriptions are also crucial when defending against a claim under the ADA.
In order to successfully defend against an ADA claim based upon a denial of a request to telecommute, an employer should also be able to point to independent evidence that on-site attendance is necessary for the position, such as the need for face-to-face or spontaneous communication and interaction with co-workers, clients, or customers, or the fact that information or equipment necessary to do the job are exclusively or more readily available on-site. Finally, while telecommuting may not constitute a reasonable accommodation for some employees, employers should not reject outright a request to do so as an accommodation. The need to engage in the interactive process with an employee who requests an accommodation is of utmost importance. If employers require further information from an employee to determine whether an accommodation is reasonable, they should seek it. Employers should keep the lines of communication open and if there is an alternative to the requested accommodation that is less burdensome, yet effective, they should be prepared to propose it to the employee.