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by Lindsay M. Bouffard
Marissa Mayer, Yahoo's recently appointed CEO, has come
under fire for her decision to end Yahoo's telecommuting program. This drastic
measure has Human Resources professionals wondering whether a blanket ban on
telecommuting could have legal ramifications. Under the Americans with
Disabilities Act ("ADA"), employers are required to provide reasonable
accommodations for employees with disabilities. Can working from home
ever be a reasonable accommodation under the ADA?
In EEOC v. Ford Motor Company, [an enhanced version of this opinion is available to lexis.com subscribers]
the Eastern District of Michigan, a federal court within the Sixth Circuit,
found for the employer and concluded that working from home was not a
reasonable accommodation for employee Jane Harris, a buyer at Ford. The
court based its conclusion on two important factors: Harris was not otherwise
qualified for her position and her request was not a "reasonable
Harris worked as a buyer, a job that required regular
interaction with the other buyers at Ford, as well as other internal and
external contacts. Following her return from a medical leave in February
2005, Harris had chronic attendance issues. Ford diligently documented
these issues and offered Harris accommodations such as permitting her a later
start time on Mondays, reassigning time sensitive assignments, and permitting
Harris to work four 10-hour days per week. Despite these accommodations,
Harris' attendance problems continued. Harris then requested
telecommuting four days per week as a reasonable accommodation for her
disability (irritable bowel syndrome). Because of the nature of Harris'
job and her persistent attendance issues, Ford denied her request to
The court sided with the employer's decision finding that
Harris did not show that she was "otherwise qualified" for her position as a
buyer. An employee is "otherwise qualified" for her position if she can
perform the essential functions of her job with or without a reasonable
accommodation. In determining the essential functions of a job, the court
stated that "regular attendance is a basic requirement of most jobs."
Here, Harris' frequent absenteeism, even before her request for an
accommodation, demonstrated that Harris was not otherwise qualified for her
position. In making this conclusion, the court noted that it "will not
second-guess the employer's judgment when its description is job-related,
uniformly enforced, and consistent with business necessity." As
described previously, an employer cannot underestimate the importance of
having a clear list of essential functions in its job descriptions. If it
is essential that an employee be in the office to complete his or her job, the
employer should identify regular attendance at work as a part of the job
Moreover, Harris' request was not a "reasonable
accommodation." Her job required "spur-of-the-moment, group
problem-solving" that is most effectively handled in person. The court
went so far as to say that "working at home is rarely a reasonable accommodation."
The court gave the example of a medical transcriptionist, whose job requires no
interaction with others, as a job in which an employee may be able to work from
home without sacrificing effectiveness.
An accurate and current job description is a starting
point to defending an employer's decision to prohibit an employee from
telecommuting, but it is not the end of the story. An employer should
carefully consider each employee's request to telecommute. Allowing some
employees to work from home while prohibiting others with the same job to work
from home weakens an employer's argument that attendance at work is an
essential job function. Additionally, be aware that there are exceptional
cases in which regular attendance is not an essential job function, such as the
medical transcriptionist example given previously. Finally, be open to
discussing other alternatives with employees who request telecommuting as a
reasonable accommodation. Perhaps options such as adjusting an employee's daily
hours, allowing occasional scheduled telecommuting days, or letting an employee
switch to a four day workweek could resolve the employee's concern.
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