Landmark telecommuting decision could affect your flex-work policies
Remember that historic ruling on telecommuting where a court essentially said employers may have to prove an employee’s physical presence at work is essential? Well, an appeals court just offered a very different slant on the issue.
Before we delve into the federal appeal court’s recent verdict, here’s a recap of the landmark ruling that started it all.
In EEOC v. Ford Motor Co., an employee with irritable bowel syndrome (IBS) requested a telecommuting accommodation for her disability.
According to the employee, her IBS made it impossible for her to drive to work or leave her desk without soiling herself.
The company declined her request because it claimed the position required face-to-face interaction with clients. She was an intermediary between steel suppliers and stamping plants.
Is ‘physical attendance’ really ‘essential’?
However, based on the evidence presented, the court ruled that Ford couldn’t show that “physical attendance” at its place of employment was an essential function of the employee’s job.
In its ruling, the 6th Circuit acknowledged that technology has essentially expanded the definition of the workplace — and “attendance” at work may include telecommuting.
And with this single phrase, the court seemed to have changed the way employers must look at telecommuting as a reasonable accommodation under the Americans with Disabilities Act (ADA):
“Attendance at the workplace can no longer be assumed to mean attendance at the employer’s physical location.”
‘Unconvincing’ argument
That brings us to the federal appeals court’s recent verdict.
The court vacated the 6th Circuit’s previous ruling and agreed to rehear the case.
During the federal appeals court ruling, Judge David W. McKeague’s dissent spelled out a number of problems with the 6th Circuit’s decision.
According to McKeague, the employee should have been deemed unqualified because the Equal Employment Opportunity Commission (EEOC) failed to prove that she could perform the essential functions of the job while telecommuting on a unreliable schedule.
McKeague also took issue with the 6th Circuit’s claim that technology has changed and that attendance wasn’t necessarily an essential function of the modern employee’s job duties. He found the argument “unconvincing,” and said that as recently as 2012 courts have ruled that physical attendance is an essential function.
Finally, McKeague argued that by departing from a well-established precedent regarding physical attendance, the court will negatively impact other firms. As he put it:
“[C]ompanies will respond to this case by tightening their telecommuting policies in order to avoid legal liability, and countless employees who benefit from generous telecommuting policies will be adversely affected by limited flexibility.”
In the meantime …
HR pros will have to wait and see how this plays out. However, in the meantime, there are still certain best practices that can keep firms safe.
As we mentioned before, if you want to unequivocally prove that employees must be physically present at work, employment attorney Jon Hyman suggests you:
- create job descriptions with clear detailed reasons why the employee must spend time in the office, and
- document the costs associated with setting up, maintaining and monitoring a telecommuting program.
And, as is always the case when the ADA is in play, if a disabled worker requests a telecommuting accommodation, engage in the “interactive process.”
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