Two recent decisions by federal appellate courts have addressed whether working from home or “telecommuting” can constitute a reasonable accommodation under the Americans with Disabilities Act (“ADA”) for an employee with a disability.
In EEOC v. Ford Motor Co., the Sixth Circuit Court of Appeals addressed whether an employee suffering from irritable bowel syndrome could be allowed to work by telecommuting as an accommodation for her condition. Jane Harris was a resale steel buyer at Ford. As part of her job, she was required to respond to emergency supply situations to ensure that there is no gap in the steel supply for manufacturers of cars. An important part of her job requires group problem-solving and interacting with co-workers and suppliers. But as Harris’s symptoms worsened, she began to miss work and her absences negatively affected her work performance. In 2005, Ford allowed Harris to work a telecommuting schedule on a trial basis, but it was unsuccessful because she missed deadlines and worked outside of the normal business hours of her co-workers and Ford’s suppliers. Eventually, Harris formally requested that she be permitted to telecommute on an as-needed basis as an accommodation for her disability. Ford had a policy allowing telecommuting, but determined that Harris was not eligible because her job required group meetings and group problem-solving. Harris was subsequently terminated for poor job performance, and the EEOC filed suit under the ADA on her behalf.
The trial court determined that Harris was not qualified for her position with Ford because of her excessive absenteeism, and her request to telecommute was not reasonable. However, the Sixth Circuit disagreed and reversed for a trial on the merits, holding that Harris was in fact disabled under the ADA. As for Harris’s request for accommodation via telecommuting, the appellate court held that whether telecommuting would allow Harris to adequately perform her job duties was a disputed factual issue that should be decided by a jury, instead of the court on a motion for summary judgment. The appellate court based this decision in part on evidence that Harris rarely had face-to-face meetings, and most of her work was performed by conference calls.
In Solomon v. Vilsack, the D.C. Circuit Court of Appeals addressed a similar issue of whether an employee desiring to work a “flexible” schedule can bring a claim under the Rehabilitation Act (The Rehabilitation Act applies to federal employees, while the ADA applies to most private sector employees. The standards, however, are primarily the same under both laws). Linda Solomon, a budget analyst with the U.S. Dept. of Agriculture, suffered from chronic depression. When Solomon encountered a depressive episode, she asked to work a flexible schedule as an accommodation, such that her schedule would vary from day to day in terms of the number of hours she worked and when those hours were worked. Solomon submitted a doctor’s note supporting her request for a flexible work schedule due to ongoing depression, but the note did not provide a proposed work schedule. The agency denied Solomon’s request, and asked that she provide additional medical documentation to justify her requested accommodation. Solomon eventually filed a lawsuit, alleging that denial of her request for a flexible work schedule violated her rights under the Rehabilitation Act.
The trial court granted summary judgment in favor of the Agency, but the D.C. Circuit disagreed and reversed for a trial on the merits. The appellate court held that “determining whether a particular type of accommodation is reasonable is commonly a contextual and fact-specific inquiry,” and that it is “rare” that any particular type of accommodation will be categorically unreasonable.
The Ford and Solomon cases represent a shift away from past cases that held, generally speaking, any accommodation that allowed the employee to work from home or away from the work place was unreasonable as a matter of law. In the past, courts have typically rejected accommodation claims that involved working from home or “telecommuting” on the ground that employers had the right to dictate when and where an employee’s work was to be performed. However, as technology advances and improves our ability to communicate remotely, the courts are showing a willingness to interpret employment laws in light of these advancements. This does not mean that all requests to work remotely are permitted by the ADA or Rehabilitation Act. For example, an outside sale’s person who is required to travel to the potential customer would not be able to perform that job from home. On the other hand, a data entry clerk who simply enters information into a computer system may very well be able to perform that work from home. As you can see from these two cases, the determination of whether an accommodation is “reasonable” is fact intensive and must be evaluated on a case-by-case basis.
In sum, there are some important lessons to take from both of these cases:
- The Courts are willing to analyze accommodation requests based on the existing state of technology, such that older cases may no longer be a reliable source of guidance for HR professionals;
- The current, and ever increasing state of technology is changing the way employees perform their job such that previously foreclosed accommodations, like telecommuting, may become more common; and
- All disability accommodation requests require individual analysis, and should be decided on a case-by-case basis.