While traditionally the answer is “no,” a recent Federal Court of Appeals decision suggests that, in some circumstances, the answer is now “yes.”
Telecommuting appeared as a workplace phenomenon in the 1970s, primarily to reduce fuel consumption during the OPEC oil embargo. Since then, the federal government has implemented telecommuting plans and policies for environmental and traffic reduction purposes. Many larger companies, particularly in the technology sector, have also permitted employees to telecommute where practical. At the same time, advances in technology since the 1970s have enabled (and often required) employees to perform many job-related tasks remotely.
In the case of EEOC v. Ford Motor Co., the 6th Circuit Court of Appeals ruled that an employee had a triable claim that she needed to work from home as a reasonable accommodation under the Americans with Disabilities Act. The decision overturned a lower court ruling dismissing the case because the position required in-office interaction and teamwork. Based on recent technology, the 6th Circuit ruled that a trial is needed to decide whether the employer had to let the employee work from home.
Until the 6th Circuit’s decision, the vast majority of courts held that a private sector employee could not insist upon telecommuting as an accommodation for a disability. Citing the advances in modern communications technology, the 6th Circuit found that an employee can now prove that telecommuting is a reasonable accommodation depending on the nature and duties of their position.
The employee worked as a resale steel buyer at Ford Motor Company and suffered from irritable bowel syndrome (IBS) during her employment. When her IBS became worse and started preventing her from being able to work in the office due to uncontrollable bowel movements, the employee took Family and Medical Leave and asked to telecommute from home. When on Family and Medical Leave, the employee tried to work from home on evenings and weekends. The resulting errors and difficulties were cited by Ford as proof that telecommuting was not a reasonable alternative. After her Family and Medical Leave, Ford denied her request to telecommute four days a week and terminated her employment.
In finding that the employee stated a triable claim, the 6th Circuit noted that Ford allowed other buyers to telecommute (although only one day every week). Additionally, the 6th Circuit reasoned that many of the problems with telecommuting cited by Ford had to do with the hours in which the employee worked remotely during her Family and Medical Leave. Distinguishing between flex-time and telecommuting, the Court held that the request to telecommute could have been a reasonable accommodation if limited to “core hours”. During these hours, the employee could have obtained information and feedback by telephone, email and video-teleconference.
As this case shows, with recent technological advances comes the danger that courts will allow employees to control where they perform work. Employers who do not want employees to impose telecommuting accommodations should establish policies and records reflecting the importance of face-to-face interactions to the company’s bottom line. Without uniform policies demonstrating the business need for in-person attendance, an employer may find itself legally required to accommodate what may be a challenging and inconvenient working arrangement.