Crystal Spraggins, SPHR
The Americans with Disabilities Act (ADA) requires employers to offer reasonable accommodation to employees with disabilities who can perform the essential functions of the job. An employer is acting within the law when it provides an accommodation that meets the definition of reasonable, even if the accommodation is not exactly what the employee requested. And, until recently, employers also had one given—showing up for work was pretty much guaranteed to be considered an essential job function.
Which is not to say that a temporary leave of absence could never be considered a reasonable accommodation. It could and can. However, an employer generally would be within its rights to turn down a request for an open-ended telecommuting arrangement.
Again, until recently.
Jane Harris, a resale steel buyer at Ford Motor Company, requested telecommuting as a reasonable accommodation so as to better control the symptoms of irritable bowel syndrome.
Ford refused the request, concluding that Harris’ job was not suitable for telecommuting. Harris had been telecommuting on a trial basis, and there was some evidence that Ford considered the trial to be unsuccessful.
So instead, Ford offered two alternate accommodations: an office move that would place Harris closer to the restroom and a suggestion that Harris seek another job within the company that would be more suitable for work at home. Harris rejected both offers and filed a claim with the EEOC.
A few weeks later, Harris was placed on Ford’s Workplace Guidelines, a tool used by supervisors to help employees with their attendance issues. In addition, Harris’ supervisor initiated weekly meetings to discuss Harris’ performance. According to the court documents, “Harris felt threatened during these meetings because they were one-on-one, closed door sessions, during which Gordon used ‘military style yelling’ and refused to allow her to leave the room.”
Harris was later given a poor performance evaluation and placed on a “Performance Enhancement Plan.” When the 30-day plan period ended, with management determining that Harris hadn’t met any of her goals, her employment was terminated.
Harris then filed suit on the grounds that her rights under the ADA had been violated and that Ford retaliated against her for filing the EEOC claim.
What is “the workplace,” anyway?
Reasoning that Harris was not a “qualified” individual on the basis of her excessive absenteeism, the district court granted summary judgment in favor of Ford. The court also noted a reluctance to second-guess Ford concerning whether Harris’ job was suitable for telecommuting and found that Harris’ “request to telecommute up to four days per week was not a reasonable accommodation for her position.”
The appeals court reversed that decision, however, noting that Harris was indeed qualified and stating:
“When we first developed the principle that attendance is an essential requirement of most jobs, technology was such that the workplace and an employer’s brick-and-mortar location were synonymous. However, 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.”
In response to the case, attorney Eric Meyer offers employers three pieces of advice:
- Even though the court’s decision only controls the Sixth Circuit, the argument is appealing, and other courts throughout the country could certainly adopt it.
- Reassess job descriptions to determine whether a physical presence in the workplace is an essential job function. However, to ensure that the new description(s) fits how work is actually done, get feedback from managers and employees.
- If you allow some employees to telecommute, be prepared for courts to assume that you’d consider telecommuting a reasonable accommodation.
What I find interesting about this case is that Ford did a lot right. However, hindsight being 20/20, I can see some problems as well. For example, despite Harris’ illness, which was a constant throughout her tenure with Ford, she consistently received favorable reviews, up until her complaint with the EEOC. Hmmm …
Also (and HUGE DISCLAIMER, because I’m NOT an attorney), I think it ill-advised for company representatives to have closed-door meetings with employees when relationships are clearly adversarial. At the very least, have a witness present.
Finally, I’m not impressed with Ford’s suggestion that Harris seek alternate employment within the company. Another good job offer? Maybe. An invitation to apply for another job? Not so much. But perhaps I’m missing something …
Regardless, whatever happens next with this case should be noteworthy.