In 2003, the farcical newspaper The Onion published an article titled, “Office Janitor Asks to Work From Home.” Management-side employment lawyers find this article hilarious.
But perhaps now they have less to laugh about. Telecommuting has been on employers’ radar as a possible accommodation for years, and has long been on the list of potential reasonable accommodations. A recent decision from the U.S. Court of Appeals for the 6th Circuit has gotten national attention as potentially expanding telecommuting as a reasonable accommodation to many more jobs than employers may agree is appropriate.
In EEOC v. Ford Motor Co., the Equal Employment Opportunity Commission brought a lawsuit on behalf of Jane Harris, a resale steel buyer for Ford. Harris, who suffered from irritable bowel syndrome, sought an accommodation to work from home four out of five days per week because, on days when her condition flared up, she “would be unable even to drive to work or stand up from her desk without soiling herself.”
Harris already had been granted the use of intermittent Family and Medical Leave Act time for such days, but apparently sought a permanent reasonable accommodation. Ford permitted Harris, on a trial basis, a “flex-time telecommuting schedule,” but the trial was deemed unsuccessful. Ultimately, after several interactive process conversations, Ford denied the request for accommodation.
After the EEOC brought a lawsuit on Harris’ behalf alleging failure to reasonably accommodate, Ford moved for summary judgment, arguing that Harris was not “otherwise qualified” for her job because of her excessive absenteeism. While Ford won at the trial court level, the 6th Circuit reversed the decision.
The appeals court found that the EEOC was able to raise a triable issue as to whether she was qualified for the position if the (allegedly nonessential) requirement was that she be physically present at the Ford facility. The court found that the key question was not whether attendance was an essential function of the job, but whether physical presence in the workplace was essential.
Because of the “advance of technology,” the 6th Circuit concluded that “the ‘workplace’ is anywhere that an employee can perform her job duties.” It glossed over Harris’ boss’ conclusion that her trial telecommuting schedule was unsuccessful because Harris was unable to establish regular, predictable hours, and found that the EEOC had shown that technology made a virtual presence in the workplace possible and the EEOC had offered evidence to “cast doubt” on Ford’s decision that face-to-face interactions were important.
The appeals court also found that the EEOC had raised a triable issue of whether Harris was qualified for her job with the reasonable accommodation of telecommuting. The court claimed that Ford had confused telecommuting with flex-time, claiming that Harris’ request to work from home did not mean she would not consistently be at work during regular business hours. Instead, the 6th Circuit declared that it was Ford’s obligation to resolve those issues by engaging in the interactive process.
The Onion’s janitor scenario hasn’t come about and never will for jobs that require on-site performance of manual labor. The 6th Circuit was careful to cite cases finding that a variety of jobs found a physical presence in the workplace to be important. However, the Ford decision suggests that, where an employee’s work is primarily intellectual in nature, employers must strongly consider whether virtual attendance is sufficient.
It will be cited by employee-plaintiffs’ counsel to stand for the argument that an employer’s preference for face-to-face contact with an employee and the need to engage in teamwork are not sufficient proof of the “essentiality” of these requirements.
Elizabeth A. Falcone is a shareholder in the Portland, Oregon, office of Ogletree, Deakins, Nash, Smoak & Stewart. She can be reached at email@example.com.