A Sixth Circuit decision reviving an Americans with Disabilities Act suit brought on behalf of an ex-Ford Motor Co. worker shows that courts are warming to telecommuting as an ADA accommodation and will lead to more employees asking to work from home, lawyers say.
The appeals court panel’s 2-1 ruling Tuesday in the U.S. Equal Employment Opportunity Commission’s case against Ford which centers on a worker who unsuccessfully sought a telecommuting arrangement to deal with irritable bowel syndrome distanced itself from the notion that the workplace ” has to mean an employer’s brick-and-mortar place of business.
In light of technological advances and the increased prevalence of remote work arrangements, it can’t simply be assumed anymore that attendance at the workplace means showing up at an employer’s physical location, said Judge Karen Nelson Moore’s majority opinion.
Any time that a court recognizes that the workplace of 2014 is very different from the workplace of 1990, when the ADA was enacted, that’s a great advance in the law, ” said Paul W. Mollica, of counsel with Outten & Golden LLP.
* * *
In addition to attacking the assumption that the workplace is the employer’s physical worksite, the majority said an employer’s “business judgment” with respect to which functions of a job are essential was just one factor to be considered.
To pursue an ADA claim, an employee has to be able to perform the essential functions of a job, with or without a reasonable accommodation. Ford argued that regular and predictable attendance was an essential function of worker Jane Harris’ resale buyer job.
The district court’s ruling holding that Harris’ request to telecommute for up to four days per week was not reasonable relied on precedent declining to second-guess the employer’s business judgment on what that job’s essential functions were. And the majority itself noted that courts routinely defer to employers on that point because a court is not equipped to serve as a super personnel department. ”
But according to Judge David McKeague’s dissent, that was exactly what the majority did by not affording deference to Ford’s business judgment and deciding which jobs required face-to-face interaction.
* * *