United States: Sixth Circuit Opens Floodgates On Telecommuting As A Reasonable Accommodation

Last Updated: April 25 2014
Article by Peter J. Petesch

In Quentin Tarantino's classic film, "Pulp Fiction," two hitmen, Jules and Vincent (played by Samuel L. Jackson and John Travolta), find themselves in a farcical and escalating "mess" – requiring the advice of a "fixer" known as "The Wolf" (played by Harvey Keitel). The Wolf arrives at the scene, assesses the situation with cool detachment, and develops a detailed plan to extricate Jules and Vincent from their unsavory and very bloody dilemma.  Imagine "The Wolf" insisting on phoning in his assistance instead of working in person with Jules and Vincent.  Would he have been as effective?  Yet, in EEOC v. Ford Motor Company, the U.S. Court of Appeals for the Sixth Circuit concluded that allowing a problem solver in a fast-moving team environment to telecommute could be a legally required reasonable accommodation under the Americans With Disabilities Act (ADA), and that traditional assumptions on the need to be physically present in the workplace sometimes fall by the wayside. 

Facts Behind the Case

The claimant was a "resale buyer" with Ford, acting as an intermediary to ensure a steady supply of steel to Ford's parts manufacturers.  The job involves troubleshooting supply interruptions, interacting with suppliers, and group problem solving with other members of her team.  Her managers believed that the group problem-solving meetings were most effective when handled in person, face-to-face. 

The claimant developed Irritable Bowel Syndrome (IBS), which caused her to soil herself unpredictably.  The symptoms impeded her commute, and limited her ability to move about the office without sudden episodes of incontinence. 

The employer had allowed other employees to telecommute, depending on the nature of their jobs and work environments.  The employer, in turn, allowed the claimant to try flex-time telecommuting on a trial basis, but believed that the experiment was unsuccessful because the employee could not establish regular and consistent work hours.  The employer concluded the telecommuting prevented the claimant from participating effectively in team problem solving or accessing suppliers during normal work hours.  Still, the claimant requested to telecommute during standard work hours for at least 80% of the time.  The employer declined her request, but offered the accommodations of a cubicle closer to a restroom or a transfer to another position better suited to telecommuting as an accommodation – accommodations that the claimant declined. 

The claimant began a pattern of unpredictable absences from work due to her condition.  Her work suffered, and co-workers bore the brunt of filling in for her and correcting her errors.  She filed a discrimination charge with the Equal Employment Opportunity Commission (EEOC), claiming failure to accommodate her disability.  Shortly thereafter, the claimant was placed on a performance improvement plan and was ultimately terminated. 

The EEOC sued on the claimant's behalf, alleging failure to accommodate and retaliation.  The employer successfully obtained summary judgment from the trial court, with the trial court holding that the claimant was not a "qualified individual with a disability" because of her absenteeism and because the employer's judgment on the unsuitability of telecommuting for her job should not be disturbed.   

How the Court Ruled on Telecommuting

The Sixth Circuit reversed the trial court, and held that there were genuine issues of fact to be resolved at trial on whether the claimant remained "qualified" and whether telecommuting was a reasonable accommodation under her circumstances. It ruled that the EEOC and the claimant presented sufficient evidence to suggest that she remained qualified for her position if the employer eliminated the requirement that she be physically present, and instead worked during regular business hours by telecommuting. The court further held that the employer then shouldered the burden of showing that the claimant's physical presence was indeed an essential job function or that telecommuting created an undue hardship.  Proving undue hardship, the court added, does not equate to a mere "showing that an accommodation would be bothersome to administer or disruptive of the operating routine."

The court acknowledged that "[f]or many positions, regular attendance at the work place is undoubtedly essential." Yet, it challenged the assumption "that the 'workplace' is the physical worksite provided by the employer," and that "the workplace and an employer's brick-and-mortar location [are] synonymous."  It reasoned 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.  Instead, 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." This, the court noted, is a "highly fact specific question."  At the claimant's instance, the court held that telecommuting was not necessarily antithetical to the job's requirement of interacting regularly with team members during core business hours – so long as the employee could be available during the business day and maintain predictable (albeit remote) attendance.

Departure or Evolution?

A host of prior court decisions rejected plaintiffs' ADA claims based on failure to provide telecommuting as a reasonable accommodation.  None of the decisions, however, rejected telecommuting outright as a reasonable accommodation.  Rather, they acknowledged a "never say never" approach in keeping with the case-by-case analysis inherent to the ADA.  The cases simply concluded telecommuting was not a reasonable or effective accommodation for many jobs that required the employee's physical presence (e.g., passenger service agent at an airport, neonatal nurse, filing clerk, pharmacy technician, or even positions where telecommuting would undermine the quality of the employee's work).

In Ford, the Sixth Circuit refused to pigeonhole the claimant's troubleshooter position into other jobs where the employee's constant physical presence is still necessary.  Although the employer argued that, in its business judgment, face-to-face interactions best facilitated group problem solving, the court rejected that justification on summary judgment.  The court said "we are not persuaded that positions that require a great deal of teamwork are inherently unsuitable to telecommuting arrangements."  The court, however, noted the tension between employees who improperly attempt to redefine the essential functions of their jobs "based on their personal beliefs about job requirements" and employers who "redefine the essential functions of an employee's position to serve their own interests."

The dissent stated that the majority had upset the assumption 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." The dissent did not believe that the EEOC and the claimant had sufficiently demonstrated that she could perform all of her essential job functions by telecommuting 80% of the time.  Finally, the dissent warned:

[T]he 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.

This final warning did not account for the possibility that telecommuting may still be a reasonable accommodation option in workplaces that do not otherwise allow telecommuting – as modification of certain policies may be reasonable accommodations.

What Employers Need to Know

The ADA's concept of reasonable accommodations often challenges assumptions on how a job is traditionally performed.  One observant client equated accommodations with the circus act of keeping plates spinning on poles.  Jobs change; the employee's physical needs change; and assistive technologies change.  The palette of accommodation options therefore changes.  In view of these "moving target" principles and the Sixth Circuit's ruling, employers may want to devote greater patience to the accommodation process overall, and greater thought to telecommuting as a reasonable accommodation in appropriate situations.

Ford will enhance the leverage of employees demanding telecommuting accommodations.  Employers can expect more employees – particularly those in office environments – with varying conditions (anxiety disorders, physical disabilities rendering commuting difficult, recovery from major illnesses) to request and expect varying levels of telecommuting accommodations.  Employers will need to be more prepared to justify and explain why physical presence in the workplace is indeed "essential."1

More broadly, the Sixth Circuit's decision in Ford sends the signal that obtaining summary judgment may become more difficult in cases over disputed reasonable accommodations, or cases disputing the "essential functions" of any particular job.  It already became clear under the ADA Amendments Act that fewer cases would be susceptible to summary judgment over the threshold issue of whether the plaintiff was protected under the law.  Ford and others illustrate the increasing difficulty of obtaining summary judgment on whether a requested accommodation is "reasonable."

Footnotes

1 For further discussion on telecommuting and flexible work arrangements, see Brian Dixon et. al., Mitigate or Litigate: Flexible Working and Legal Exposure, The Littler Report (Feb. 2011), available at http://www.littler.com/publication-press/publication/mitigate-or-litigate-flexible-working-and-legal-exposure.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Peter J. Petesch
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions