Thursday, May 22, 2014

Is Telecommuting Now A Mandatory Accommodation for Disabled Workers?

It’s been an axiom of disability discrimination law that the courts will not overrule an employer's legitimate workplace judgment and that employers can structure jobs and establish job qualifications as they see fit.  But some recent decisions have started to erode that doctrine, as judges begin to take issue with what they perceive to be unreasonable employer requirements. This is a troubling trend-most judges do not have experience with mainstream employment workplaces, coming up as they do in either either civil service or law firm practice.  Moreover, these same judges seem to vary in their opinions as to what constitutes a proper job description. Frequently they base their opinions not on  a company's assessment of the requirements of the position, but rather their personal belief as to whether it would be too much trouble for an employer to modify its job requirements in particular circumstances.  These kinds of ad hoc assessments make it very  difficulty for employers to establish reasonable policies, or even assess whether their activities are lawful.  And judicial second guessing ultimately imposes financial cost on employers as they try to keep pace with whatever the latest judicial perceptions seem to be.

Case in point:  a recent federal Sixth Circuit decision in which the EEOC challenged Ford Motor Company’s job description for resale steel buyers.

The fundamental dispute arose over  whether the plaintiff, who served as an intermediary between steel suppliers and auto parts manufacturers producing products for Ford, needed to be physically present at work to properly complete her job.  The court described the essence of the job as "problem solving"-the position required a resale buyer to be able to deal with regular and emergency supply issues between steel suppliers and the manufacturers.  This type of problem solving required the resale buyer to interact with members of the resale team, suppliers and others in the Ford system whenever a supply issue arose.  Ford managers made the fairly uncontroversial business judgment that they wanted these interactions to occur face-to-face whenever possible and that email and teleconferencing were insufficient substitutes for in-person team interaction.

The plaintiff suffered from irritable bowel syndrome, which in its severe manifestation can be absolutely debilitating.  Unfortunately, her symptoms became worse over the course of her employment with Ford and she began to take intermittent and irregular FMLA leave when she experienced significant symptoms.  The company tried to accommodate some of the attendance problems by allowing the plaintiff to work a flex time telecommuting schedule, but the trial routine was unsuccessful because the plaintiff could not make regular appearances at the office.  The company did allow her to do some remote work from home on an informal basis to keep up with her paperwork, but continued to require her to meet in-office hours requirements.

Ford had a telecommuting policy authorizing employees to work up to four days a week from a telecommuting site, although it noted that not all salaried employees eligible to apply for telecommuting would have jobs that were appropriate for those kinds of arrangements.  Some other buyers, not in plaintiff’s position, telecommuted one scheduled day per week.  But when the plaintiff requested telecommuting, Ford determined that her position was not appropriate for it, including that because her absences were unscheduled and unanticipated, the telecommuting policy would not be effective.  The company offered the plaintiff several other potential accommodations at work including seeking another position, that would be suitable for telecommuting, but the plaintiff rejected each of those options.

The district court granted summary judgment to Ford noting that the plaintiff was unable to meet the basic requirements of her position, and stating that the court would not second guess the employers’ business judgment regarding the essential functions of the job with respect to irregular telecommuting up to four days a week.

But the Sixth Circuit reversed.  Instead of deferring to the employer's assessment of its own job requirements, the court required Ford to demonstrate that physical presence in the workplace was an essential function of the plaintiff's job, or alternatively, that the proposed telecommuting arrangement would create an undue hardship for the company.  The court found that Ford could not show that regular attendance was an essential part of the resale buyer position, and in an exercise in sophistry( I find the court's deliberate contortion of its analysis to be quite disingenuous), the court noted that a physical worksite can now mean simply a place where the employee is capable of performing the job. The court said that Ford had established by uncontroverted testimony from its managers that physical presence was required for the resale buyer position.  But the court simply rejected this evidence.  In fact, the court looked at Ford’s efforts to accommodate the plaintiff, including the fact that it allowed her to actually work from home for a while, as well as the telephonic and email centric nature of the communication with the clients, and said that Ford hadn't put on enough evidence to show that the job could not be done by telephone or email.

As noted above, I find this decision very troubling.  Basically, the Sixth Circuit simply rejected the employer’s business judgment on how it wants its work accomplished.  Any employer that has a telecommuting policy needs to be very careful about taking any action with respect to an employee whose disability requires her to be absence from the workplace, but where remote work might be possible.  I can see companies eliminating telecommuting policies entirely (which would strengthen the argument that people need to be in the workplace, but reduce the flexibility companies routinely like to maintain), or at the very least resetting job descriptions so that telecommuting policies will simply not apply.  At the end of the day, an appellate court’s rejection of what had heretofore been considered an employers’ fundamental right to structure jobs the way it sees economically fit, may ultimately result in less options for employees rather than more.

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