A recent decision by the 6th U.S. Circuit Court of Appeals seems to have sent many employers into a tailspin on whether and how often to allow employees to telecommute to fulfill job responsibilities. EEOC v. Ford Motor Company, 6th Cir., No. 12-2484, April 22, 2014. (FindLaw.com link.) However, at this point, it is too early to tell what kind of effect the decision will have on a wider basis.
Here are the facts of the case:
- Jane Harris was hired by Ford Motor Company as a “resale buyer,” where her job responsibilities including serving as an intermediary between steel suppliers and “stampers” (the companies that use the steel to produce parts for Ford).
- According to Ford, the essence of Harris’ job was “group problem-solving” where it was necessary for Harris to “interact with members of the resale team, suppliers and others” to resolve supply problems.
- Harris suffered from Irritable Bowel Syndrome (IBS), a condition that causes fecal incontinence.
- During period between 2005 and 2009, Harris took intermittent FMLA leave, and also could work on a flex-time telecommuting schedule.
- That solution was not effective, as Harris began to make mistakes because she could not engage in team problem-solving or access suppliers to obtain information during off-hours.
- In 2009, Harris formally requested to be permitted to telecommute on as as-needed basis as an accommodation for her IBS.
- Ford utilized such a policy, but reserved the right to decide for which jobs it was appropriate.
- At the time of Harris’ request, several other buyers telecommuted on one scheduled day per week.
- Harris believed that an as-need telecommuting schedule would “relieve her stress and alleviate her IBS symptoms.”
- Ford felt in-person attendance was an essential function of the resale buyer position, and refused Harris’ request; however, Ford suggested several alternate accommodations (office closer to rest room, lateral move to job with more schedule flexibility).
- When Harris refused the alternate accommodations, she was terminated for performance issues, and filed an EEOC, then federal court lawsuit, alleging violation of the Americans with Disabilities Act (ADA).
- The district court granted summary judgment in favor of Ford, stating that it would not second-guess Ford’s business judgment regarding the essential functions of the job, and holding that Harris was not a “qualified individual” because of her excessive absenteeism.
- Harris appealed to the Sixth Circuit, which reversed the lower court’s decision, and remanded the case for a trial by jury.
In determining whether a case should be dismissed at the summary judgment stage, a court need only find a question of “material fact” to deny the motion. That is because juries are the “fact finders” in a lawsuit – the courts cannot step into that role and make factual determinations. A case only can be dismissed at the summary judgment phase if there is no issue of material fact, and the court can determine that a plaintiff cannot support his or her legal position sufficiently.
Here, the Sixth Circuit determined that issues of fact existed as to whether a telecommuting arrangement can be a reasonable accommodation for an employee suffering from a debilitating disability. That determination, in itself, is not noteworthy.
What is noteworthy, however, is that Ford presented evidence that the essential functions of the resale buyer position required in-person attendance at the worksite for problem-solving sessions, business meetings, and interaction with suppliers.
Typically, courts will defer to an employer’s business judgment when determining the essential functions of a position. However, in this case, in spite of Ford’s assessment of the resale buyer position as one requiring in-person attendance, the Sixth Circuit held that evidence existed to dispute the fact that physical attendance was an essential function of that job. It based that holding on its own impression and understanding that recent technological developments have created more opportunities for interaction among workers, whether or not those individuals are physically present in the workplace.
In addition to the Court’s insertion of itself into Ford’s business decision regarding the functions of the job, more troublesome is the fact that the Court specifically stated that “the telecommuting arrangement proposed by Harris was a reasonable means of accommodating her disability.” While Courts are arbiters of the law, and not of the facts, this statement could lead one to believe that the Court was making a factual – and somewhat conclusory – factual determination regarding the proposed accommodation.
Employers with facilities in the Sixth Circuit (which includes KY, MI, OH, and TN) should be aware of this decision and should follow further developments in this area of the law. This includes reviewing and updating telecommuting policies to accurately reflect the parameters of such work, and to assure that essential functions of key positions are adequately assessed to determine whether telecommuting is appropriate.
Other employers should carefully investigate, document, and respond to similar requests for accommodation, and assure compliance with existing ADA law and cases. The fact that Harris’ case was brought by the EEOC could mean that the EEOC will be looking for parallel cases in other jurisdictions, in order to create an opportunity for additional federal appellate circuit courts to rule similarly.