What does it mean to provide "reasonable accommodations" to temporarily or permanently disabled employees so they can do their jobs, without causing "undue burdens" on employers? (This type of accommodation is required by the federal Americans with Disabilities Act.) The answer is not static, but evolving. Here's the latest information and some guidelines to consider when an employee asks for a telecommuting arrangement.

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Working Virtually: The New Frontier
in ADA Accommodation?

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Sometime this year, a U.S. District Court in Detroit will dive back into the
weeds to decide whether a particular job at Ford Motor Corporation could be
done adequately by an employee working four days a week from home.
That's the task it was given by the U.S. Court of Appeals for the Sixth Circuit,
which covers Kentucky, Michigan, Ohio, and Tennessee. This court overruled
a trial court's initial rejection of a discrimination suit filed by the U.S. Equal
Employment Opportunity Commission (EEOC).
»
The EEOC is the federal agency charged with
enforcing the Americans with Disabilities
Act. What constitutes a reasonable
accommodation without placing an undue
burden on the employer? The answer is
constantly evolving as the EEOC explores new
theories and fact patterns. (EEOC v. Ford, No.
12-2484).

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Regardless of the ultimate outcome at the trial court level, the Court of
Appeals has staked out an aggressive position hailed by the EEOC as "the
latest in a series of cases ensuring persons with disabilities are allowed the
opportunity to use their talents fully." Based on today's sophisticated
technology, the courts recognize that communication between employees
and employers (as well as customers and coworkers) is not the barrier it once
was. Presumably that would make it easier to telecommute to jobs which
require regular interaction.
While nobody would want to keep employees from using their talents fully,
the question really lies in what accommodations are required for an
employee to perform well at the job.
Here's a quick summary of the facts:
»

4. Group Interaction
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Jane Harris, a former "resale steel buyer" for Ford, has an acute case of
irritable bowel syndrome (IBS). The essence of her job, according to
testimony in the case, "was group problem-solving, which required that the
buyer be available to interact with members of the resale team, suppliers and
others in the Ford system when problems arose.“
Harris' IBS could flare up at any time, causing frequent "accidents." Those
could be induced simply by the act of standing up from a seated position, she
testified. Harris asked Ford to allow her to work from home four days a week
to accommodate this disability.
Ford already had a policy generally permitting many office workers to
telecommute one or two days a week. But because Ford believed Harris' job
required frequent interaction with workers, the company balked at her
request Instead, Ford wisely engaged in a discussion with Harris to try to
work something out, rather than slamming the door on her request outright.

5. Accommodations Offered
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Specifically, Ford offered to relocate her office to a spot adjacent to a
restroom, and also offered to find her another job that was (in its opinion)
more suitable for telecommuting. Harris declined both offers.
Complicating matters, however, Ford subsequently terminated Harris on
performance grounds. She interpreted it as retaliation for her seeking the
accommodation, and took her case to the EEOC, which sued Ford on her
behalf.

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» As noted, the trial court sided with Ford, agreeing with the employer that
Harris was not qualified to perform the job when frequently away from the
office, as she already had been. The absences resulted in some errors due to
her lack of access to information that she could not retrieve remotely after
business hours. The lower court also agreed that Harris' telecommuting
request would not qualify as a "reasonable accommodation," and that she
had failed to prove her termination was retaliatory.
The key issue for the appeals court was whether Ford could prove that
Harris' physical presence at the worksite was essential. In prior similar cases
years ago, the appeals court had sided with employers on this issue.

7. "Attendance" Equals Physical Presence?
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"However," the court noted, "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. 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."

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» To determine whether a particular job requires a worker's physical presence
is required, the appeals court said these considerations must be taken into
account:
• Written job descriptions;
• The business judgment of the employer;
• The amount of time spent performing the function; and
• The work experience of past and present employees in the same or
similar positions.
The court then summarized arguments by Ford and the EEOC, commented on
them, then sent the case back to the lower court to take a fresh look at the
facts and arguments and rule on the case again. The bottom line for
employers today: in disability situations, think twice before equating work
attendance with physical presence at your worksite.

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10. 14550 Torrey Chase Blvd., Ste. 360 Houston, TX 77014 USA
www.hrp.net
E-mail : info@hrp.net
Toll Free
Phone
Fax
:
:
:
877.880.4477
281.880.6525
281.866.9426