By Reba Weiss

In a recent Sixth Circuit case,1 the Court reversed summary judgment for the employer finding that telecommuting can be a reasonable accommodation where actual physical presence at the worksite is not necessary and technological advances ?make? the? remote? worksite? feasible. The Court found that through modern technological advances, ?the ?workplace? is anywhere that an employee can perform her job duties.?

In E.E.O.C. v. Ford Motor Company, the charging party, Jane Harris, was employed as a?was a substantial factor in the decision resulting in the unfair labor practice.?? ?Id. at 18.? ?(emphasis 1 E.E.O.C. v. Ford Motor Co., 1584674 (6th Cir., 4/22/14). F.3d_, 2014, WL resale buyer at Ford.? ?Her job duties included responding to emergency supply issues to ensure no gap in steel supply to the parts manufacturers, updating? spreadsheets, ?and ?periodic ?site ?visits. Ford contended that ?the essence of the job was group?? problem-solving,?? which ?required ?that ?a buyer be available to interact with members of the resale team? and others on a face-to-face basis. Harris suffered from IBS, an illness that causes fecal incontinence.?? Harris was sometimes unable to drive to work or stand up from her desk without soiling herself.? ?Needless to say, Harris was frequently absent from the worksite due to her disability. ?Ford allowed Harris to work on a flex- time telecommuting schedule on a trial basis, but ultimately deemed this arrangement unsuccessful because ?Harris ??was ?unable? to ?establish ?regular and consistent work hours.? ?In an attempt to make up for lost work time, Harris worked from home including on evenings and weekends.?? Ford took the position that ?if [Harris] was too ill to come to work, she would be considered too ill to work,? and refused to credit Harris with the time she spent working during non-?core? hours and marked the days that she stayed home because of her illness as absences.?? Some of Harris?s co-workers took on Harris?s work because she was not permitted to work remotely. Harris formally requested that she be permitted to telecommute on an as-needed basis as an accommodation for her disability. Ford had a policy that permitted authorized employees to telecommute up to four days per week. ?Under this policy, several other buyers telecommuted on one scheduled day per week.? ?Ford denied Harris?s proposed accommodation and offered to either move her cubicle closer to the bathroom or find her another ?job?? more ?suitable ?for ?telecommuting. Harris rejected each of these suggestions. Harris filed a charge of discrimination with the E.E.O.C.?? ?A few weeks later, Harris?s supervisor held a team meeting to discuss Harris?s absences.? ?During the meeting, Harris became emotional and fled the room. ?She then received a negative performance review and a Performance Enhancement?? Plan.???? ?Harris?? was?? terminated shortly after it was determined that she had not met the goals of the plan. The E.E.O.C. filed a Complaint, alleging Ford ?violated ?the ?ADA ?by? failing? to accommodate ?Harris?s ?disability? and ?by retaliating against her for filing a charge of discrimination. ?The district court granted Ford?s motion ?for ?summary? judgment ?on ?all ?claims. The Sixth Circuit reversed the dismissal of the failure to accommodate claim as well as the retaliation claim.2

There was no dispute that Harris was disabled within the meaning of the ADA.?? The dispute centered around whether Harris was ?otherwise qualified? for her position with Ford. Harris presented evidence that she was qualified on two alternative bases: (a) she was qualified if Ford eliminated the requirement that she be physically present at the work site; or (b) she was qualified with a telecommuting accommodation. Ford responded that either (a) physical presence in the workplace was an essential function of the job; or (b) telecommuting would create an undue hardship.

The Court first analyzed whether physical presence in the workplace was an essential function of Harris?s job.??? ?The Court acknowledged that for many jobs, physical presence at the workplace was essential.? ?In today?s world, however, ?the ?workplace? is anywhere that an employee can perform her job ?duties.??? ?The ?assumption ?in ?many? early cases that ?regular attendance in the workplace? requires the employee to be physically present at the worksite provided by the employer does not necessarily hold in today?s world: [A]s technology has advanced, . . . , and an ever-greater number of employers and 2 The retaliation claim and analysis are not addressed in this article. 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, . . . .

Finding that whether physical presence at the Ford worksite was an essential function of the job is a ?highly fact specific? question, the Court reversed summary judgment. Significantly, the Court also found that employers should not be allowed 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 went on to analyze whether telecommuting created an ?undue hardship? for Ford.?? ?Similar to its ?modern day? analysis regarding qualification, the Court found that ?the class of cases in which an employee can fulfill all requirements of the job? while working remotely has greatly expanded.??? The Court differentiated between ?flex-time? arrangements and telecommuting.??? ??Flex-time? may be an unreasonable accommodation because businesses cannot operate effectively where employees are allowed to set their own work hours. Telecommuting, on the other hand, allows the employer to rely on an employee working regular scheduled hours. Therefore, telecommuting can be a reasonable accommodation that does not create an ?undue hardship? on the employer. The Court agreed with earlier cases that ?[a] proposed accommodation that burdens other employees may be unreasonable.? ?It found that in this case, however, Harris?s co-workers were required to do some of her work not because she was physically absent, but because Ford prohibited her from working remotely during the business day. It was Ford?s responsibility to engage in the interactive process to explore reasonable alternatives for accommodation.? ?Ford?s failure to do so ?is not evidence that a telecommuting arrangement in any form was unreasonable.? Furthermore, Ford cannot use Harris?s past attendance as a basis to deny her accommodation because her absences were related to her disability.?? Ford?s argument that Harris was not qualified because she rejected alternative accommodations made by Ford also did not pass muster.? ?An accommodation must address the employee?s unique needs and reasonably accommodate ?her ?disability.???? In ?response ?to Ford?s suggestion that moving Harris closer to the bathroom was a reasonable accommodation, the Court said it was not reasonable to expect Harris ?to ??suffer? the ?humiliation ?of? soiling herself on a regular basis in front of her coworkers.? Reassignment, another accommodation offered by Ford, was only considered when an accommodation within the individual?s?? current?? position?? would?? pose ?an undue hardship.

In analyzing whether an accommodation would? ?pose?? an? ?undue?? burden,? ?the?? Court considered several factors, including the nature and cost of the accommodation and the financial resources of the employer.? ?Finding that with Ford?s financial resources, the cost of a home workstation would be ?de minimis,? the Court rejected that argument. The significance of this decision cannot be overstated.?? Following is a summary of the important points made in the case:

  • In ?today?s?? ?world?? ?of?? ?technological advances, it cannot be assumed that the ?workplace? is the physical worksite provided by the employer;
  • Whether ?physical??? ?presence??? ?in??? ?the workplace is truly an essential function of the job is a ?highly fact specific? inquiry not suitable for summary judgment;
  • An employer?s? definition? of the ?essential functions of an employee?s job may not be used to serve its own interests. ?Rather, the Court should consider all the factors of which the employer?s business judgment is only one;
  • The class of cases in which an employee can fulfill all requirements of the job while working remotely has greatly expanded;
  • Flex-time ?arrangements? ?should? ?not? ?be confused with remote work arrangements;
  • A proposed ?accommodation ?that ?burdens other employees may be unreasonable;
  • An employer has a duty to engage in the interactive process to explore reasonable alternatives for? accommodation ?of? a disabled employee;
  • An employer ?cannot ?use ?past ?attendance records ?as ?a ?basis ?to ?deny? an accommodation where the absences were related to the employee?s disability;
  • Reassignment ?of? ?an? ?employee? ?is? ?only considered? when? accommodation? within the?? individual?s? ?current? ?position? ?would pose an undue hardship; and
  • The resources ?of ?the ?employer ?can ?be considered when determining whether an accommodation imposes an undue hardship on an employer.