We live in exciting times. There are electronic town halls, legislation is signed by autopens, and the Hubble Space Telescope allows scientists to study remote corners of space from locations all over the world. Technology even allows for doctors to practice telesurgery.
These remote work developments are of more than passing relevance to the average workplace. More than ever before, employers are dealing with this telecommuting question: If an employee asks to telecommute due to a disability, must the employer grant that request?
The Answer: Maybe.
Some would say that “maybe” is an answer in the middle of the Legalese Jungle through which, for a fee, lawyers will help employers navigate. However, The Bullard Edge believes that “maybe” is as clear as it gets for now. While there is universal agreement that telecommuting can be a form of reasonable accommodation under the ADA, Oregon law, and other jurisdictions, there is no universal agreement on when it is reasonable.
To illustrate the disagreement, let’s consider HomeCo and these “assumed” facts.
- HomeCo designs and manufactures lighting fixtures for the home.
- It hired Edgar Thomas Homebody (friends call him ET) as a resale buyer.
- Resale buyer teams interface between sellers of raw materials and companies that use the raw materials to produce products for HomeCo.
- Teams must respond to emergency supply issues to ensure that there is no gap in supply.
- Unfortunately, ET has a medical condition that requires frequent restroom breaks.
- He tried intermittent family leave and working flex time, but these proved ineffective.
- Eventually, ET requested permission to telecommute on an as-needed basis.
- Several other buyers telecommute one (scheduled) day per week.
- Under HomeCo’s telecommuting policy, salaried employees are eligible to apply for a telecommuting arrangement that would allow telecommuting up to four days per week.
- The policy also specifically states that telecommuting is not appropriate for all jobs, employees, work environments or even managers.
- HomeCo denied ET’s request because the uncertainty of “as-needed” telecommuting conflicted with the team construct of the buyer position. HomeCo believed that a physical presence in the workplace was necessary for the team to get its work done.
- After the denial of his request, ET’s performance suffered.
- HomeCo went through a performance improvement process with him that yielded little.
- When ET’s performance did not improve, the company terminated him for failing to meet performance expectations.
- ET sued HomeCo alleging its denial of the requested accommodation constituted a violation of the ADA.
The issue is this. If he were able to prove these facts, would a court conclude that ET should be allowed to phone HomeCo? The answer, maddeningly, is maybe.
This fact pattern is similar to the facts in EEOC v Ford Motor Company
, a real case currently pending before the Sixth Circuit Court of Appeals. In that case, the US District Court for the Eastern District of Michigan said “no” and granted summary judgment to Ford. On appeal, a Sixth Circuit three-judge panel reversed. Subsequently, though, the full Sixth Circuit vacated the panel decision and agreed to rehear the case en banc. The rehearing occurred on December 3, 2014 and a decision is anxiously awaited.
Here are the competing positions.
On the one hand, there is the appellate panel’s April 22, 2014 decision reversing summary judgment
. The panel held that summary judgment was not appropriate because there was a question of material fact as to whether it would have been reasonable for Ford to allow its employee to work from home on an as needed basis (especially given that Ford had a telecommuting policy and already had other buyers working remotely some of the time). The employee presented evidence that she “was qualified for her position if physical attendance at the worksite is not considered” and, therefore, the burden shifted to Ford “to prove that physical presence in the workplace is an ‘essential function’ of the resale buyer position. Ford cannot indisputably carry its burden.”
On the other hand, Ford has taken the position that an unpredictable schedule is not reasonable. In support of Ford’s position, the US Chamber of Commerce filed an amicus brief
, in which it stated:
“The district court below ruled correctly that an employee’s request to work from home on an unpredictable and frequent basis is not reasonable. With rare exceptions, employers expect their employees to maintain reasonably regular, predictable attendance.”
* * *
“The ADA does not require an employer, as an accommodation, to eliminate the essential functions of being present in the workplace and available for work. Thus, where an employer needs an employee to maintain regular, predictable attendance at the workplace in order to perform the essential functions of the job, an accommodation of working from home for up to four days a week is unreasonable on its face.”
We will have to wait to see how the full Sixth Circuit rules on this case. In the meantime, I am going to repeat several observations I made over a decade ago in a Bullard Alert
. They are as true today as they were in September 2003.
“As ‘remote office’ technology continues to get more effective, more and more employees are requesting telecommuting as an accommodation for their disabilities. An employer should consider and respond to such a telecommuting request in the same way that it evaluates other accommodation requests: by engaging in an ‘Interactive Process’ with the employee.
The Interactive Process is simply a two-way communication between employee and employer regarding accommodation. The goal is to determine whether accommodation is needed, is available, would be effective, and would not be an undue hardship on the employer. Although an employer is free to design its own process, there are four-steps that should take place in every Interactive Process.
- Confirm the employee’s request;
- Determine the essential functions of the job;
- Obtain medical information relevant to the request; and
- Identify and evaluate potential accommodations.
Following these steps should put an employer in a position to grant or deny a request, and to avoid liability under the ADA or state law.”
Telecommuting requests are a challenge. It is absolutely conceivable that a request in a particular instance may be motivated more by personal convenience more than by medical need. However, employers should not assume that in any case. Before it denies a request for permission to telecommute as a form of reasonable accommodation, an employer should do its homework.
The Bullard Edge