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Labor and Employment Law

Sixth Circuit District Court Concludes Telecommuting Is Not a Reasonable Accommodation under the ADA

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 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 accommodation."

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 telecommute. 

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 description.

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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