Advances in Technology Require Employers to Explore More Options for Reasonably Accommodating Disabled Employees

Paula Lopez, May 28, 2014.

On April 22, 2014, the Court of Appeals for the Sixth Circuit, in EEOC v. Ford Motor Co., rejected Ford’s position that its employee’s presence at the workplace is necessary to perform her essential job functions and found that Ford failed to establish that telecommuting, in this instance, would impose an undue hardship on an employer obligated to provide a reasonable accommodation under the Americans with Disabilities Act (ADA).  In doing so, the Sixth Circuit upended the typical deference given to an employer’s business judgment regarding the essential functions of a job.

Title I of the ADA requires employers to provide reasonable accommodations to qualified employees with a disability, so long as such accommodation does not impose an undue hardship on the employer.  A reasonable accommodation is a modification to the workplace or job function that enables a disabled employee to perform the essential job requirements.  In an action brought against an employer as a result of a denial of a request for an accommodation, the employee bears the burden of establishing that he or she is (1) disabled and (2) “otherwise qualified” for the position.  An employee is “otherwise qualified” despite disability if it can be shown that the employee has the requisite knowledge, skill and experience to perform the essential job functions.  If an employee can demonstrate the need for the requested accommodation and that he or she can still perform the job, an employer can lawfully deny a requested accommodation if it imposes an undue hardship on the employer’s business.  The ADA has identified the following factors as relevant in determining whether an accommodation imposes an undue hardship on an employer:  (1) “nature and cost of the accommodation”; (2) overall financial condition and number of persons employed at the employer’s affected facility; (3) overall financial resources and size of the employer entity; and (4) the employer’s type of operation taking into account the “structure and functions of [its] workforce.”

Ford involves the case of Jane Harris, a Ford employee holding the position of resale steel buyer.  Ms. Harris suffers from irritable bowel syndrome and when her symptoms are aggravated, she suffers from incontinence.  Harris requested permission to telecommute up to four days a week on an as needed basis, depending on the severity of her symptoms.  After considering the request and determining that telecommuting was not appropriate for her position, Ford suggested alternative proposed accommodations, which Harris rejected as not adequately addressing her disability.  Ultimately Ford terminated Harris because it determined that her presence in the workplace was necessary for her to perform essential job duties, which require steel resale buyers to “work as part of a team.”  The EEOC sued Ford for failure to accommodate Harris’ disability and for retaliation, claiming she was fired as a result of filing a charge with the EEOC.  The District Court dismissed the EEOC’s action, finding that attendance in the workplace is a basic job requirement, the absence of which renders an employee unqualified, and deferred to Ford’s business judgment as to what constitute essential job functions.

On appeal, the Sixth Circuit reversed the dismissal of the action.  In doing so, the circuit court considered Ford’s assertion that it is within its business judgment that a resale steel buyer’s physical presence in the workplace is necessary to perform essential job functions requiring group interaction and group problem solving. However, the circuit court was not persuaded by Ford’s reasoning in this regard, finding that current technology minimizes the need for in-person contact to accomplish group interactions. The court went on to consider whether in-person interaction was essential in light of plaintiff’s actual prior work experience and noted that plaintiff regularly communicated with internal and external “stakeholders” via conference call.   In addition, the court noted that Ford maintains an established telecommuting policy and has extended telecommuting options to other steel resale buyers under limited bases, undermining its argument that workplace presence is necessary for Ms. Harris to perform her essential job functions.

In reviewing the district court’s holding that Ms. Harris’s requested accommodation was unreasonable, the circuit court noted prior precedent holding that telecommuting does not constitute a reasonable accommodation and brought into question the continued applicability of such holdings in light of current technology.  The court recognized that technical advancements have re-defined the “workplace” as no longer being the employer’s place of business but anywhere the employee can perform his/her job functions.  In addition, the court reiterated an employer’s obligation to engage in an interactive process with an employee in order to identify reasonable alternatives to a requested accommodation rather than to outright reject a requested accommodation for being unreasonable.

For the same reasons that the circuit court determined that Ms. Harris’s request for telecommuting as an accommodation for her disability is reasonable, the court found that Ford failed to meet its burden of proving an undue hardship.  In addition, the court pointed to the size of the company, its financial resources, and its already existing written policy allowing for telecommuting in some instances and agreeing to pay for the cost of implementing such approved arrangement.

The Sixth Circuit’s decision is in-line with existing EEOC guidelines requiring an employer to modify its policy of where work is to be performed, if the modification is needed as a reasonable accommodation and does not impose an undue hardship.  While it will now be left to a jury to determine whether Ms. Harris’s request for a telecommuting accommodation is reasonable, as a result of the Sixth Circuit’s decision, telecommuting, previously not considered a reasonable accommodation except in the rarest circumstances, is now a viable accommodation that employers must carefully consider if requested by a disabled employee, or otherwise risk exposing themselves to liability under the ADA.