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Telecommute not always ADA accommodation

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in Discrimination and Harassment,Human Resources

When it comes to ADA accommodations, the 6th Circuit Court of Appeals apparently agrees with Woody Allen: “80% of success is showing up.”

Employers won a major victory April 10 when that court ruled that telecommuting is not always a reasonable accommodation, even for jobs that can mostly be done from home.

The ADA allows disabled employees request reasonable accommodations that let them perform their jobs’ essential functions. Although courts typically hold that “regular attendance” can be an essential job function, many employers accommodate disabled employees by letting them work from home if that allows them to perform their jobs successfully.

The 6th Circuit’s decision may mean that’s not always necessary.

Recent case: Jane, a buyer for car maker Ford, has a digestive disorder that caused her to miss lots of work. One year, she was absent more often than not. Ford’s telecommuting policy allowed buyers to work from home one or two days per week, as long as they were available to come into work on scheduled telecommuting days if they were needed. Usually, this involved meetings or other events requiring a buyer’s presence.

Eventually, Jane asked to telecommute up to four days per week. Ford said that was unreasonable. She was ultimately fired because of performance problems.

Jane complained to the EEOC, which sued on her behalf, alleging ADA violations. It argued that if some telecommuting was reasonable, more would be reasonable, too.

A panel of the 6th Circuit said a jury should decide, but Ford appealed to the full circuit court.

It sided with Ford, noting that there’s a big difference between telecommuting one day per week and requesting blanket approval to show up in the office only once a week. The court observed that jobs involving interaction with co-workers and clients often require actually being at work. “Regular, in-person attendance is an essential function—and a prerequisite to essential functions—of most jobs,” the court wrote. (EEOC v. Ford, No. 12-2484, 6th Cir., 2015)

Final note: Other circuit courts may adopt this view, which for now is binding only in the 6th Circuit states of Kentucky, Michigan, Ohio and Tennessee.

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