Do I Really Need To Come To Work? New Frontiers In ADA Accommodation


by Roger Miller

Miller, Roger
rmiller@mcgrathnorth.com
(402) 341-3070

Can an employer require a disabled employee to actually come into work and perform their job duties? “Maybe not” one federal appeals court recently held.

The EEOC brought suit on behalf of Jane Harris against Ford Motor Company alleging that Ford had discriminated against her on the basis of a disability by refusing to accommodate her disability, and in retaliating against her for filing a charge protesting the alleged discrimination.

Ms. Harris was hired by Ford in 2003 as a “resale buyer.”  Her job was to act as an intermediary between steel suppliers and those companies which utilize steel to produce parts for Ford Motors. The job also required some site visits.

Ms. Harris’ performance reviews noted concerns about her interpersonal skills. In 2007 and 2008, her overall performance rating was in the bottom quartile.

Harris also suffered from irritable bowel syndrome. The condition sometimes prevented Harris from making it to the bathroom “on time.” She did utilize intermittent FMLA leave for the condition and in 2005 her supervisor allowed her to telecommute on a trial basis but found the practice to be unsatisfactory, claiming Harris couldn’t report on a regular and consistent basis. Thereafter, when Ms. Harris had problems, she did not come into work but rather worked from home, also claiming that she worked nights and weekends. However, Ford considered days worked from home as absences and eventually placed Ms. Harris on a performance improvement plan.

In 2009, she formally requested the opportunity to telecommute, pursuant to an actual Ford policy which allowed for telecommuting under certain circumstances. Indeed, several other persons in the same position as Ms. Harris telecommuted but only one day per week. Ford denied Ms. Harris’ request primarily due to her job’s requirement for site visits. Ford did offer two other options: (1) that it would provide her with a work station closer to the restroom; or (2) she could transfer to a job where telecommuting was more appropriate. Harris rejected both. On April 23, 2009, she filed a charge of discrimination. While the charge was pending, she was placed on performance improvement plan based on her continued absences and was ultimately fired.

A federal district court granted Ford’s motion for summary judgment for the following three reasons: (1) Harris was not a qualified individual with a disability (QIWAD) due to her excessive absenteeism; (2) telecommuting four days per week was not “reasonable” in her job, or in the eyes of Ford, and it was not within the province of the Court to interfere with the business judgment of the employer; and (3) there was no retaliation as the performance improvement plan and ultimate discharge were based on Harris’ unacceptable attendance.

The EEOC appealed the granting of summary judgment to the U.S. Court of Appeals for the Sixth Circuit which reversed the lower court’s decision. In so doing, the Court first held that irritable bowel syndrome certainly constituted a disability. It then held that the plaintiff could meet the standard of a QIWAD by showing either: (1) she was qualified for the job, (after eliminating the “alleged essential” requirement that she be physically present); and (2) if she could show a telecommuting accommodation made her qualified. If she was able to meet one of either of those two standards then Ford had the burden to prove either that her physical presence was an essential function of her job or that telecommuting constituted an undue hardship. There were two comments made by the majority opinion which are of concern. First, the Court stated: “As technology has advanced attendance is no longer synonymous with an employer’s physical location.” More importantly, the Court also stated that a “work place” is “anywhere the employee can perform their job.” The Court went on to state that the “vital question” isn’t whether attendance is essential, but rather whether attendance at the employer’s physical location is essential. In finding it was not in this particular case, the Court was not impressed with the employer’s contention there was a need for in-person contact for group problem solving, relying again on technological advances and specifically the availability of teleconferencing.

In this case, it appears the Court concluded that a requirement that this employee must be able to perform her “resale buyer” job from the employer’s place of business was not an essential function. Clearly, the Court is giving less deference to an employer’s business judgment than the court below. The Court concluded that telecommuting is a far more reasonable accommodation for many more jobs than had been the case historically.

The court also rejected Ford’s two proposed accommodations stating that moving plaintiff’s work station closer to a bathroom didn’t solve the problem with respect to her IBS condition. Moreover, the transfer to another job could, in the Court’s view, only be considered when there is no reasonable accommodation to the employee’s current position. The Court went on to note that an employer could not refuse to reasonably accommodate a request based on discipline given due to the disability sought to be accommodated. In this case, where the attendance/absences were due to the disabling condition, it was improper for Ford to refuse to try and accommodate under a rule which said essentially that employees currently under progressive discipline are not eligible for an accommodation. Finally, the Court held that although accommodating the plaintiff’s request in this case might indeed be a hardship, it does not qualify as an “undue” hardship.

The dissenting opinion rightfully noted that the decision of the majority could lead to a far greater number of requests for the ability to work from home via so-called telecommuting. Although there was some evidence presented by Ford that another employee believed the resale buyer position could not be performed from a remote location, Ford’s position was probably weakened by the fact that it did allow telecommuting for some other positions up to four days per week.

Certainly, there are many jobs which cannot be performed remotely due to the need for the utilization of specialized tools and equipment or machinery. Even for jobs which do not require the use of such tools and equipment, verifying the hours worked by non-exempt employees can also be somewhat problematic if they are permitted to work from home. See, https://www.mcgrathnorth.com/publications/telecommuting-and-timekeeping/. Most assuredly, technology has made it possible for more to be done away from the employer’s place of business and telecommuting may indeed be an effective method of accommodation in some positions. Careful thought should be given in deciding which jobs may qualify as “telecommutable” and for those which are not, especially in the face of an accommodation request by a disabled employee, the employer needs to carefully articulate valid and substantiable business reasons as to why that telecommuting is not reasonable.

If we can be of assistance in helping to articulate and provide definition to those circumstances where telecommuting is or is not appropriate, please give us a call.

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