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Telecommuting as a Reasonable ADA Accommodation

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In a significant ruling affecting the business community, a federal appeals court has concluded that a telecommuting arrangement could be a reasonable accommodation for a disabled employee even if the employer, in its business judgment, determined that working remotely was an insufficient substitute for in-person work.

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• The court's interpretation of the Americans With Disabilities Act (ADA);

• Its recognition of the latest advances in technology; and

• A finding that jobs suitable for telecommuting are no longer "extraordinary" or "unusual." (EEOC v. Ford Motor Co., No. 12-2484, 6th Cir. April 22, 2014)

The case, brought on behalf of a fired Ford Motor Company employee by the Equal Employment Opportunity Commission (EEOC), was based on:

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"…As technology has advanced in the intervening decades, and an ever-greater number of employers and employees utilize remote work arrangements, attendance at the workplace can no longer be assumed to mean attendance at the employer's physical location," wrote Judge Karen Nelson Moore of the U.S. Court of Appeals for the Sixth Circuit.

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"Instead, the law must respond to the advance of technology in the employment context, as it has in other areas of modern life, and recognize that the 'workplace' is anywhere that an employee can perform her job duties," Moore wrote in the 2-1 majority opinion.

Is Telecommuting a Good Idea for Your Workplace?

The answer depends on a few factors. One company -- Ctrip, a Chinese travel website -- did a nine-month test run with volunteers to find out. The results of the study were later published in the Harvard Business Review.

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One question Ctrip wanted to answer was whether it could save money on office space and furniture, by allowing employees to work from their homes.

The employer asked for volunteers to participate in the study. Half of the volunteers remained working in the office as a control group, while the other half telecommuted for the nine-month test period.

At the end of the study, Ctrip found they saved $1,900 per employee on office space and furniture costs. That was significant. But what happened to productivity?

The results were a pleasant surprise. Among the group of home workers:

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• Attrition decreased.• Productivity (measured by the number of calls completed) increased by

13.5 percent;• The number of sick days taken plummeted; and• Most home workers reported much higher levels of job satisfaction.

Reasons Cited

Ctrip attributed the lower attrition rate to the flexibility of working from home. The increase in productivity might have occurred because telecommuters had a quieter environment, uninterrupted by co-workers, and because home workers tended to put in more hours overall.

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Of course, not everyone or every job is well-suited to working from home. In the Ctrip study, some who volunteered to telecommute chose to return to the office after the test period.

Those who achieved success as telecommuters tended to be strong in self-discipline and the ability to self-motivate.

The study also concluded that the people best suited to working from home were those who had established social lives outside of the office -- such as married people, parents, and older employees. Younger workers generally were less content working from home, possibly because their social lives were tied to co-workers.

Bottom line: Telecommuting has been criticized in some circles. But for the right job and the right people, the benefits to employers and employees can be well worth considering.

The District Court

The U.S. District Court for the Eastern District of Michigan granted summary judgment for Ford, ruling that attendance at the job site was an essential function of Harris's job, and that she was not a qualified individual under the ADA.

The court also ruled that Harris's telework request was not a reasonable accommodation for her job. The court further said the EEOC could not prove Harris's termination was retaliatory because it was based on attendance and performance issues that pre-dated her filing of the complaint.

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The Appeals Court

The Sixth Circuit reversed the lower court on both counts in April, offering a broad view of what constitutes a workplace given the changes in technology. The majority said the case presented a "highly fact-specific" question regarding whether presence at the Ford facilities was truly essential, and that a jury should decide that issue. The court also ruled that the EEOC had created a question for the jury about why Ford terminated Harris, and whether it was in retaliation for filing a charge or because of genuine performance problems.

In a dissent, Judge David W. McKeague stated there was no evidence that technology had changed sufficiently to alter previous rulings that regular attendance generally is an essential job function and telecommuting is reasonable only in unusual cases. He said the ruling may prompt companies to tighten their telecommuting policies to avoid legal liability.

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The Reaction

Lawyers for the EEOC said the decision reaffirms an employer's important obligation to provide a reasonable accommodation unless it can show it results in undue hardship to a company. They also said the appeals court ruling was a clear recognition that workplace realities have evolved and made teleworking a viable option for many persons whose disabilities can be better managed at home rather than enduring long commutes and stressful working conditions.

Ford expressed disappointment with the decision, noting that it conflicts with earlier decisions from the Sixth Circuit and other federal courts. The company said it is evaluating its options regarding further legal review.

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