Asked & Answered: Tara Mahoney on ADA and Telecommuting

 By Jo Mathis

Legal News
 
Allowing an employee to work up to five days per week from home may be required as a reasonable accommodation under the Americans with Disabilities Act (ADA). 
In a recent case, an employee requested that Ford Motor Company allow her to telecommute four to five days per week to accommodate her disability (irritable bowel syndrome). Ford rejected her request, determining that an essential function of the employee’s job as a team member required her to be present for on-site, client meetings and “in-person team problem-solving” meetings at work. The employee rejected alternative accommodations proposed by Ford and ultimately filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC). She was terminated shortly thereafter.
The EEOC filed suit against Ford for violations of the ADA. In reversing a Michigan federal district court’s grant of summary judgment to Ford, the U.S. Court of Appeals for the Sixth Circuit held that Ford failed to carry its burden of proving that physical presence was an essential job function; and that a telecommuting accommodation would create an undue hardship.
The court reasoned that the employee could do her job from home. For example, she could attend meetings by phone or by computer; and client meetings could be rescheduled, if necessary, when a flare up of her bowel condition occurred. In addition, Ford allowed other employees to telecommute from time to time. Thus, the court concluded, it was not unreasonable to assume the job could be performed from home.
The Legal News talked to Tara Mahoney, a Honigman labor and employment attorney who lives in Washtenaw County, about the issue.
 
Mathis: As a labor and employment attorney, how do you see this decision by the U.S. Court of Appeals for the Sixth Circuit?
Mahoney: This decision by the Sixth Circuit reaffirms the EEOC’s aggressive and continued efforts to pursue new theories of employment discrimination. It is also a significant change to the long-standing principle of courts deferring to a company’s business judgment relative to whether being physically present at work is an essential function of a job. The Court essentially flipped that principle on its head by not giving deference to Ford’s determination that one of the essential functions of the employee’s job was physical presence at its premises.
Mathis: What do employers need to do?
Mahoney: One, if an employer has a written telecommuting policy, or simply an unwritten practice of offering telecommuting as an option to its employees, the policy or practice should be reviewed with counsel to determine the implications moving forward. 
Two, all employers should be mindful of this case when evaluating whether telecommuting is a reasonable accommodation under the ADA.
Mathis: Do employers need to tighten telecommuting policies now? Or should they eliminate them altogether?
Mahoney: I hate to say it, but it depends. There is no one-size fits all answer. One of the benefits of having counsel review an employer’s telecommuting policy, practice and procedure is that it will allow an employer to make an informed business decision regarding the possible future implications based on their individual circumstances.
Mathis: What about resentment from co-workers who must report to the office every day?
Mahoney: There can always be resentment among co-workers — who has the better cubicle, who gets to work a flex-time schedule, etc. So this is really no different than other workplace issues, including other accommodations employers are required to make under the law for disabled employees. If an employer becomes aware of co-worker resentment, it should be addressed promptly and directly. Reasonable accommodations, when not causing an undue burden, are required under the law and employees cannot be discriminated against or harassed for having such an accommodation.
Mathis: Working from home may be a required accommodation even when the employer believes working in the office is necessary. Do you think that will lead to discrimination against people with disabilities, who might be rejected in the interviewing process?
Mahoney: No. The interviewing process, however, may become more involved and complex. An applicant, just like an employee, has protection under the ADA and may inquire during the application process about a telecommuting arrangement. This will require the employer to engage in the interactive process to determine whether it is a reasonable accommodation under the circumstances. 
Mathis: What are the three most important takeaways from this case?
Mahoney: 1. An employer cannot assume that a court will agree with the employer’s assessment that an essential function of a job includes physical presence at their premises. Employers need to be thoughtful with regard to this issue when considering any telecommuting policy or practice.
2. All the court ruled here is that it was not appropriate to grant summary judgment to the employer and that a jury had to decide whether the telecommuting request was a reasonable accommodation under the circumstances. The court did not find that telecommuting always is or always will be a reasonable accommodation.
3. The court was only evaluating a telecommuting arrangement as a reasonable accommodation. The court specifically distinguished flex-time arrangements and determined that the issue before it was not about flex-time. Thus, employers should not conflate telecommuting arrangements with flex-time arrangements, each of which may or may not be a reasonable accommodation depending on the circumstances.
Mathis: Now that it will be easier for employees to pursue cases based on a claim that they were not permitted to work from home, do you expect an increase in your workload? 
Mahoney: Yes. I have already received multiple inquiries regarding the impact and scope of this decision. In fact, I, along with my partner Cameron Evans, will be conducting a webinar on this matter and the impact of the case on May 15, 2014 from 12-1. For more information regarding the webinar or to register for it, go to http://ada-telecommuting.eventbrite.com or call Casee Kidd at 313-465-7155.Aske
 

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