In a recent opinion, the U.S. Sixth Circuit Court of Appeals found that Ford Motor Co. failed to reasonably accommodate an employee who sought a part-time telecommuting arrangement that would have allowed her to address a chronic medical condition. The company fired the employee, a resale steel buyer, after she requested the opportunity to telecommute up to four days each week in an effort to address her chronic irritable bowel syndrome. The U.S Equal Employment Opportunity Commission then pursued a wrongful termination action on her behalf.
The Court made several important observations in reaching its decision in the case, which both employees and employers should heed when considering telecommuting as an alternative job structure.
Telecommuting is gaining in popularity – According to the U.S. Census Bureau’s American Community Survey, the number of telecommuters rose 79% between 2005 and 2012.
Don’t confuse attendance with physical presence – If an employee’s actual presence at the employer’s place of business is not an essential job function, technology and modern definitions of a “workplace” allow him or her to perform job responsibilities remotely. Emails, conference calls, and offsite meetings let workers function as teams and solve business problems without the necessity for face-to-face interaction.
Telecommuting is not flex-time – By definition, flex-time allows employees to alter the start and end times of their work days around normal business schedules; by contrast, telecommuting provides an alternative work environment within the regular business day. The Sixth Circuit noted that Ford confused the two, believing that employee wouldn’t be consistently available during the company’s “core hours,” when, in fact, the telecommuting arrangement the employee proposed would give her the ability to work within that schedule.
Find ways to ensure that the reasonable accommodation is “reasonable” – Ford claimed that it had no responsibility to find alternative work arrangements for the employee, but the Court disagreed, writing that “it was Ford’s responsibility to engage in an interactive process to explore reasonable alternatives,” a clear signal to employers. Additionally, what may seem sensible or practical to an employer may not be reasonable to the employee. Here, Ford offered to move the employee’s cubicle closer to the restroom or finding her another position in the company that was “more suitable to telecommuting,” neither of which the Court deemed more reasonable than the part-time telecommuting structure the employee sought within her current position.
How we work and where we work is evolving, and employment laws related to those issues is evolving as well. If you are either an employee or employer with questions about a telecommuting request, the Employment Lawyers at Sommers Schwartz are available to discuss your situation. Please give us a call to learn how we can help.
Daniel D. Swanson
Dan Swanson has extensive experience in employment litigation, handling claims of breach of employment contract, non-competition agreements, discrimination, whistleblower claims, sales representative commission disputes, Family & Medical Leave Act claims, and other employment-related actions, as well as representing individuals in severance negotiations.
