How much is an employee’s physical presence in the workplace really worth to employers? It’s a question that human resources departments and in-house attorneys dealing with labor and employment issues continually grapple with. Throw into the mix an employee claiming coverage under the Americans with Disabilities Act (ADA) and the law’s recent amendments, and the situation only gets thornier.
“ADA cases are on the rise, and we know they’re becoming more difficult cases to defend,” Aimee Delaney, a partner at Hinshaw & Culbertson, told CorpCounsel.com.
In the latest chapter of one recent case, Equal Employment Opportunity Commission v. Ford [PDF], the U.S. Court of Appeals for the Sixth Circuit overturned a lower court decision in favor of the car company, ruling that just because an employer has business reasons for telling an ADA-covered employee she can’t work from home, it doesn’t necessarily mean it can dodge a discrimination suit. The 2-1 decision underscores the need for in-house counsel to think carefully about telecommuting, especially since “being at work” could mean a digital, not a physical, presence.
The case revolves around Jane Harris, a resale buyer for Ford who suffered from irritable bowel syndrome, a condition that she claimed made it difficult for her to function in the workplace. Ford did not grant Harris’ request under the ADA to telecommute four days a week, citing the idea that, in Ford’s own business judgment, Harris needed to be in the office because her job involved working closely with others.
In the resulting disability discrimination suit, the district court went with Ford, but the Sixth Circuit reversed and remanded, determining that the EEOC’s claims were worthy of review by a jury. The court’s majority opinion acknowledged that the concept of “attendance” at the workplace used to refer only to physical presence at a brick-and-mortar workplace. “However, as technology has advanced in the intervening decades, and an even-greater number of employers and employees utilize remote work arrangements, attendance at the workplace can no longer be assumed to mean attendance at the employer’s physical location,” the ruling said. It added that employment law must respond to these technological advances.
Whether Harris and the EEOC end up winning their case, it’s worth noting the court’s openness toward considering the commission’s point of view, despite Ford’s argument that Harris could not do her job without face-to-face contact with colleagues. “This is as far as we’ve seen a court go in requiring an employer to consider a work-from-home arrangement that, on its face, there are some issues with,” Susan DiMickele, a partner at Squire Sanders and a coleader of the firm’s global labor and employment practice group, told CorpCounsel.com.
The dissenting judge raised the concern that giving employers less say in who telecommutes after Ford may very well cause companies to narrow their telecommuting policies dramatically, or eliminate them altogether. Delaney agrees. “It seems the knee-jerk will either be to go back and narrowly tailor the policies, if you keep them at all,” she said.
Although this kind of predicted impact would not be what the EEOC was aiming to do through litigating the issue, in Delaney’s opinion, throwing out your existing telecommuting policy is probably not the worst idea. “I would caution against having the policies period, even before Ford,” she said, explaining that not only can having formal policies expose a company to litigation, but on a practical level, the majority of jobs are probably better accomplished at the workplace.
If a company does choose to implement a telecommuting policy, according to DiMickele, it is important that there are very specific job descriptions set out for telecommuters. And employers might want to write a telecommuting contract too. “A lot of my clients are moving toward not only having a telecommuting policy, but having a specific agreement between the employee and employer that the employee signs off on,” she said.
The case should also cause employers to think twice when they decide who can work from home. “Employers are really going to have to do a case-by-case analysis of the position and not assume that just because the position requires interaction or collaboration, it has to be face-to-face,” DiMickele said.