Is telecommuting as a reasonable accommodation under the ADA the new norm?


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The Sixth U.S. Circuit Court of Appeals recently held that a four-day per week telecommuting arrangement could be a reasonable accommodation for a disabled employee. In this article, Louis Britt and Katie Parham from our US member FordHarrison analyse the decision.

Originally posted on the Ius Laboris Knowledge Base:

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Is telecommuting as a reasonable accommodation under the ADA the new norm?

  1. 1. Is telecommuting as a reasonable accommodation under the ADA the new norm? Publication Date: 9 June 2014 | Author(s): Louis Britt,, Katie Parham, Member Firm(s): FordHarrison Country: United States Executive Summary: The Sixth U.S. Circuit Court of Appeals (covering the states of Kentucky, Michigan, Ohio and Tennessee) recently held that a four day per week telecommuting arrangement could be a reasonable accommodation for a disabled employee, even though the employer determined, in its business judgment, that teleconferencing was an insufficient substitute for in-person work. The court noted that, given the state of modern technology, the class of cases in which an employee can fulfill all requirements of the job while working remotely has greatly increased, and it is no longer the case that jobs suitable for telecommuting are “extraordinary” or “unusual.” SeeEEOC v. Ford Motor Co. (6th Cir. Apr. 22, 2014). Background: The employee in this case, Harris, worked as a resale buyer for Ford Motor Company. Her role required some individual tasks, but the essence of her job required group problem-solving. Ford utilized a telecommuting policy that authorized employees to work up to four days per week from a telecommuting site, and several resale buyers telecommuted one day per week. Harris suffered from an illness that required her to take intermittent medical leave and was eventually permitted to work a flex-time telecommuting schedule on a trial basis. However, the company found this arrangement problematic because Harris was unable to establish regular and consistent work hours. Harris requested she be allowed to telecommute up to four days per week as an accommodation for her illness, but the employer rejected this request. It offered her alternative accommodations, which Harris rejected. Harris filed an agency charge claiming Ford discriminated against her on the basis of her disability. The agency ultimately sued Ford on her behalf, claiming the company violated the federal disability discrimination law when it denied her request to telecommute.
  2. 2. 2 The Court’s Decision: In a 2-1 decision, the Sixth Circuit held that Ford violated the disability discrimination law by denying Harris’ request to telecommute as an accommodation for her disability. The court rejected Ford’s argument that physical presence at work was an essential function of Harris’ job because she needed to be available for meetings and to handle urgent matters during the workday. The court found that telecommuting does not raise the same concerns as flex-time scheduling because the employer can count on the employee to be working during scheduled hours while working remotely. Although the court acknowledged that an employee’s physical presence at the workplace could be considered an essential job function for some positions, it was not persuaded that “positions that require a great deal of teamwork are inherently unsuitable to telecommuting arrangements.” Employers' Bottom Line: This decision is troubling for employers because it shows that a court may reject the employer’s business judgment in managing its workforce. Employers, particularly those with existing telecommuting policies, are now cautioned to seriously consider telecommuting as a reasonable accommodation if an employee’s disability affects his or her ability to be physically present in the workplace, but does not ostensibly affect the employee’s ability to work during normal working hours. An important distinction must be made regarding whether the employee is seeking a flex-time or a telecommuting arrangement. Additionally, in the Sixth Circuit, courts cannot be expected to defer to an employer’s business judgment that physical presence in the workplace is an essential job function. Instead, the employer must be able to demonstrate whyphysical presence is required and must be able to do so by relying on reasons beyond generalized concepts such as “team work” and “interoffice interaction.” Carefully crafted job descriptions and narrowly defined telecommuting policies will be of the utmost importance. Originally posted on the Ius Laboris Knowledge Base: About Ius Laboris Ius Laboris is an alliance of law firms offering employers cross-border employment and pensions law advice. It has 1,300 specialist HR lawyers in over 150 cities and 44 countries. Ius Laboris offers access to the best local HR law experts in one global team with 20% more ranked employment lawyers (Chambers & Partners, November 2013) than any other global HR legal services organisation. Further, Ius Laboris has 50% more recommended lawyers than its nearest rival in a recent survey in
  3. 3. 3 PLC's employment law guide. Clients include many household names as well as multinational companies in all sectors ranging from energy, retail and technology to pharmaceuticals. For more information on Ius Laboris, please visit