Employment Law Tip for Employers #5: Telecommuting

In terms of reasonable accommodations pursuant to the Americans with Disabilities Act, telecommuting has been a national debate for years.  Employers are questioning whether telecommuting is a reasonable accommodation for employees and whether it should be permitted as an accommodation for those with disabilities.  Recently, an opinion came down from the Sixth Circuit Court reversing the decision of the District Court in EEOC v. Ford Motor Company.

The Equal Employment Opportunity Commission (“EEOC”) filed a complaint against Ford Motor Company in 2011 alleging that Ford refused to accommodate an employee, Jane Harris, who was suffering from irritable bowel syndrome.  Ms. Harris requested an accommodation to work from home due to her illness. Ford refused this request claiming that Ms. Harris’ job required in-person communication and if she could not be physically present she was not otherwise qualified for the job.  Consequently, Ms. Harris sued Ford and the EEOC pursued the case on her behalf.

In 2012, the Eastern District of Michigan ruled that Ms. Harris indeed could not perform the essential functions for her job with or without the accommodation of working from home. The Court stated that working from home is only available for an “exceptional” class of jobs that do not require “the kind of teamwork, personal interaction, and supervision that simply cannot be has in a home office situation.” 

This decision went against the EEOC guidelines on reasonable accommodations under the Americans with Disabilities Act (“ADA”), which states  that allowing employees to work from home is required since the term “reasonable accommodation” may include among other requirements “job restructuring, part-time modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.”

The EEOC appealed the Court’s decision and last month the Sixth Circuit Court released the opinion reversing the 2012 grant of summary judgment on the failure to accommodate and retaliation claims.  This decision has direct implications for employers, making it wise to reconsider their telecommuting policies and accommodations for employees with disabilities.

There are certain steps that employers can take to decrease the possibility of lawsuits for violation of the ADA by not accommodating employees with disabilities:

-          Have Detailed Job Descriptions in Place.  Drafting  detailed job descriptions will help identify what job functions are essential, which might help both employees and employers to discern if the request of accommodation is reasonable or not.  Also, this will help during litigation if an employee files a claim.

-          Document Employee Requests and Employer’s Response.  If an employee requests an accommodation, document these requests as well as all attempts made by an employer to accommodate an employee.  This will also help during the litigation process.

-          Document Policies.  An employer should make sure that all policies are documented and read by employees.  It is also essential to monitor that these policies are implemented.  If one employee is allowed to work from home and another is not, this might give rise to a lawsuit.

-          Understand What Employee Is Requesting.  Make sure to understand the employee’s request before refusing it.  Misinterpreting a request for a reasonable accommodation could lead to a lawsuit as well.

For more information on telecommuting, the ADA and other employment matters, you may contact Dana Perminas of Messer Strickler, Ltd. at (312) 334-3474 or at dperminas@messerstrickler.com.