Businesswoman on Videoconference with BusinessmanThis was the very question the U.S. Court of Appeals in Ohio was asked to consider in Equal Employment Opportunity Commission v. Ford Motor Company.  The issue in this case is whether a telecommuting arrangement could be a reasonable accommodation for an employee suffering from a debilitating disability.  In a 2-1 split opinion, the Court answered that “yes,” such an arrangement may be a reasonable accommodation.

Jane Harris worked as a resale buyer for Ford.  Throughout her entire employment with the company, Harris suffered from irritable bowel syndrome (“IBS”), a condition that causes fecal incontinence.  Her condition worsened and, on bad days, she was unable to drive to work or stand up from her desk without soiling herself.  Harris started to take intermittent FMLA leave.  Ford also allowed her to work a flex-time telecommuting schedule on a trial basis but later rejected it because Harris was unable “to establish regular and consistent work hours”.  The company also felt that the time Harris worked from home on evenings and weekends to keep up with her work was “not a sufficient substitute” for work during regular business hours.  Harris also allegedly made mistakes and missed deadlines working nights and weekends because she could not immediately contact Ford’s suppliers for information needed for her projects.  Her absences and declining work performance also caused her co-workers to pick up some of her work and correct her mistakes.

Eventually, Harris asked Ford for permission to telecommute on an as-needed basis as an accommodation for her disability.  In fact, several other buyers telecommuted once per week.  Ford’s telecommuting policy also authorized employees to work up to four days per week from a “telecommuting site” but also stated that such arrangements were not appropriate for all positions and/or employees.  Harris told Ford that most of her work could be done via computer or telephone, and that she could reschedule meetings that fell at inconvenient times.  Ford concluded that Harris’ position was unsuitable for telecommuting and denied her request.  Instead, Ford offered Harris alternative accommodations including moving her office closer to the restroom or finding another job for her within Ford more suitable for telecommuting.

After Harris filed a discrimination complaint against Ford with the EEOC, she was placed on a performance improvement plan.  At the conclusion of the 30-day PIP period, Ford determined that Harris failed to meet any of the PIP’s objectives and terminated her employment.  In a lawsuit the EEOC filed against Ford on Harris’ behalf, the EEOC argued, among other things, that the company failed to accommodate her disability.

In its defense, Ford argued that Harris’ physical presence at work was required because the “essence” of her job involved group problem-solving with other employees of the company and suppliers.  Ford also felt emails and teleconferencing were an insufficient substitute for in-person team problem-solving.

Although Ford provided evidence that that physical attendance was an essential function for Harris’ position, the EEOC presented enough evidence to cast doubt on the importance of face-to-face interactions at the company.  For example, even when Harris was physically at work, the majority of her communications and interactions were done via conference call.  The Court also noted that technological advances allow the “workplace” to be anywhere that an employee can perform job duties.  And, Ford offered no evidence to prove that Harris would be less able to perform her work from home.  Ford’s decision to allow other buyers to telecommute on a limited basis also cut against Ford’s position.

The Court also found that Ford’s alternative accommodations to Harris were not sufficient because they did not adequately address Harris’ unique needs and therefore did not reasonably accommodate her disability.  Because Harris testified that standing up from her desk could cause her to soil herself, Ford’s offer to move Harris’ office closer to the restroom did not address her needs.  Ford’s offer to help Harris find another position with the company was also not reasonable because there was no guarantee that such a position would be found.

This is not a great decision for employers.  It may it encourage more employees to request and push for telecommuting as a reasonable accommodation, even when telecommuting may not be reasonable in light of the specific circumstances.  The important lesson for employers is that they should not automatically reject an employee’s request to telecommute as a reasonable accommodation.  Instead, during the interactive process, employers should carefully and objectively examine the job duties of the position in question to determine if attendance is truly required for the position.  Factors that should be considered include available technology and how employees in similar positions perform their jobs and work from home even on a limited basis.