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Sixth Circuit Holds Telecommuting May Be a Reasonable Accommodation for Employee With IBS

Stressing that technology has made telecommuting easier, the Sixth Circuit yesterday revived the U.S. Equal Employment Opportunity Commission's claims that Ford Motor Co. failed to accommodate a worker with irritable bowel syndrome (IBS) by refusing her request to work from home most days.

In a 2-1 decision citing technological advances, the appeals court overturned and remanded a Michigan federal judge's decision to grant summary judgment to Ford on the agency's claims that automaker violated the Americans With Disabilities Act by refusing former resale buyer Jane Harris' proposal that she be allowed to work from home four days a week because of her condition.  (EEOC v Ford Motor Co, April 22, 2014, Moore, K).  This will permit the EEOC to proceed to trial on its claims in the U.S. District Court for the Eastern District of Michigan.

Harris was employed by Ford as a buyer on Ford’s raw material team, purchasing and reselling steel to suppliers that manufactured and supplied vehicle parts to the automaker’s assembly plants. The position involved some individual tasks, 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.  Harris was unable to establish regular and consistent work hours during the trial period, and it 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.  Ford, however, did not credit Harris for time spent working during non-“core” hours, deeming these efforts “casual overtime” typically expected of salaried employees, and marking as absences the days that she stayed home because of her illness.  Thus, in the first seven months of 2009, the employee was absent more often than she was present during core business hours.

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. The employee’s supervisors discussed her job requirements and concluded that her position was not suitable to telecommuting, denying Harris’ request for a formal telecommuting arrangement.

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, and she was placed on a 30-day performance improvement plan.  Harris’ performance had not improved by the end of the period, and her employment was terminated.

Reasonableness of Telecommuting
The Court’s decision expands its prior holdings related to the reasonableness of telecommuting.  In 2004 the Sixth Circuit held in Brenneman v. MedCentral Health Sys, that telecommuting is not a reasonable accommodation for most positions.  The Brenneman decision cited the Sixth Circuit’s 1997 analysis in Smith v Ameritech that telecommuting would be reasonable only in “unusual” cases where an employee could effectively do the job from home.  Yesterday’s opinion departed from earlier precedent which found telecommuting reasonable only for a very narrow class of jobs and broadened the class of jobs amenable to telework.  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.”

While emphasizing “we are not rejecting the long line of precedent recognizing predictable attendance as an essential function of most jobs,” the majority proceeded to focus on the “vital question” which it framed as not whether “attendance” is an essential job function for a resale buyer, “but whether physical presence at the Ford facilities was truly essential.”  “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.” The Court found that, “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.”  

Business Judgment Not Dispositive
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 and that email or teleconferencing was an insufficient substitute for in-person team problem-solving.  Courts in numerous circuits are routinely deferential to the business judgment of employers, following the maxim that courts should not sit as “super-personnel departments.”  Here, in a move Judge McKeague cited in his dissent as just such “super-personnel” review, the Court stated “our inquiry does not end simply because Ford has expressed the business judgment that face-to-face interaction is desirable. . . . [W]e 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.”  The Court ultimately held, “Although Ford has provided significant evidence that physical attendance was an essential function of the resale buyer position, the EEOC has offered at least enough evidence genuinely to dispute this conclusion.”

Telecommuting Is Not “Flex” Time
While the Court appears eager to embrace telecommuting as a viable reasonable accommodation strategy, it was careful to distinguish telecommuting from “flex” time arrangements.  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.  The Court found that this argument “confuses remote work arrangements with flex-time arrangements.”  “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.”

The Court found, however, that telecommuting did not raise the same concerns posed by flex-time scheduling.  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.  Moreover, the employee’s previously failed “flex” time arrangement was distinct from the telecommuting arrangement she proposed and could not be used as an excuse not to consider a telecommuting accommodation.

Employer Take-Aways
The Sixth Circuit’s ruling may initially appear to be a vast departure from what employer’s thought they knew about telecommuting.  Preparing for and engaging in the interactive process with employees in the future, however, should not change markedly based on the Sixth Circuit’s ruling.  As was true prior to this opinion, job descriptions should be kept up to date so that true physical presence requirements as well as other essential functions are present and clearly articulated.  Similarly, an employer faced with a request for accommodation should still actively and collaboratively engage with that employee in exploring possible reasonable accommodations.  And, as this decision makes clear, the accommodations under consideration should include the possibility of telecommuting if applicable to the situation. 

In light of the Court’s expansive stance on telecommuting, however, employers are wise to review all telecommuting policies.  If an employer maintains a telecommuting policy, it should be clear as to the boundaries of telecommuting arrangements as well as the request and approval process. 

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