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Employer Law Report

Sixth Circuit reverses course and holds that telecommuting may be a reasonable accommodation

Posted in EEO, Leave Administration

Courts in the past, including in the Sixth Circuit (which includes Ohio), have held that telecommuting is not required as a reasonable accommodation because regular attendance at work on a predictable schedule is an essential function of almost all jobs (excepting those that are regularly done by all employees from a remote location). On April 22nd, however, the Sixth Circuit reversed course in a 2-1 decision in EEOC v. Ford Motor Company and revived the EEOC’s lawsuit on behalf of a fired Ford worker with irritable bowel syndrome.

The employee utilized intermittent FMLA leave over a period of time when she could not report to work due to her condition. Ford permitted the employee to work from home on a trial basis, but the trial proved unsuccessful because the employee could not establish regular and consistent work hours to effectively interface with others to perform her job duties. Even though Ford permitted all of its employees to apply for telecommuting arrangements (usually 1-2 days per week), the request of the employee in question was denied because her position required in-person meetings with suppliers and teaming with co-workers that could not effectively be done remotely four out of five days per week, according to Ford. Ford did offer to relocate the employee’s office closer to a restroom or transfer her to a position more suitable for telecommuting. The employee rejected both proposals.

The Court held that the employee’s proposal to work from home four out of five days per week was not unreasonable. The Court justified its departure from its earlier decisions by stating that technology has changed in the past couple decades, and working from home is a more viable solution than it was when it previously was rejected by the Court in Brenneman v. MedCentral Health Sys., 366 F.3d 412 (6th Cir. 2004) and Smith v. Ameritech, 129 F.3d 857 (6th Cir. 1997). While attendance is still an essential function of every job, physical presence in an employer worksite might not be.  The Court held that, today, it is not unusual that an employee can effectively perform all work-related duties from a remote location—including teamwork with co-workers. The Court remanded the case to the trial court to determine if the employee could perform all of her job duties from home four out of five days per week.

Bottom Line:  Under this precedent, an employer may be required to grant some degree of telecommuting as a reasonable accommodation. However, employers still may require regular attendance during regular working hours, even if that attendance is via telecommuting.