06/08/2015 11:36 am ET Updated Jun 08, 2016

Telecommuting and Disability Employment Accommodations

The Americans With Disabilities Act (ADA) of 1990 requires that an employer with 15 or more employees not discriminate against an otherwise qualified individual with a disability, among other provisions. Employment discrimination litigation under the ADA frequently focuses on the requirement that an employer provide a reasonable accommodation to a disabled employee unless it would cause an undue hardship to the employer. However, any accommodation need not change an essential job function as that would be inherently unreasonable. Is telecommuting a required reasonable accommodation? Consult an experienced attorney in an ADA or employment law specific situations.

The federal Court of Appeals for the Sixth Circuit in a split decision recently stated that the essential job functions of a steel buyer for Ford Motor Company could not be accomplished through telecommuting (EEOC v. Ford Motor Company). The employee in question had irritable bowel syndrome. The Court noted a high level of interactivity and teamwork was required in this particular employment position. Ford attempted unsuccessfully three times to allow this buyer to telecommute prior to denying her proposed accommodation of up to four days a week of telecommuting. Ford did offer on-site accommodation that the employee refused. The Sixth Circuit overturned its own 2014 panel of judges who had overturned a trial court's summary judgment for Ford.

The Sixth Circuit held that in this situation "regular and predictable on-site job attendance" was an essential function of the job. The Sixth Circuit noted that numerous court decisions have created a general rule that, with few exceptions, hold that "an employee who does not come to work cannot perform any of his job functions, essential or otherwise." This is because "most jobs require the kind of teamwork, personal interaction, and supervision that simply cannot be had in a home office situation." Not requiring on-site attendance would fundamentally alter the job.

The dissenting Sixth Circuit Justices criticized the majority for failing to adequately engage in an individualized approach to this employee's situation. The dissent believed that enough facts were in dispute concerning the specific requirements of the job that a jury should be allowed to hear the case. For example, there was not a break-down of the amount of time spent conducting each function of the job. Additionally, the dissent believed that Ford had not adequately engaged in an interactive process with the employee in seeking a reasonable accommodation.

There are several concepts that employers should follow in disability accommodation situations:

. Prepare detailed job descriptions.

. Be careful that your customary practices do not create an unstated change in a job description.

. Interact and dialogue with an employee who seeks a disability accommodation.

. Treat similarly situated employees in a similar manner.

There are several things employees should do when requesting an accommodation:

. Record in advance the amount of time actually spent in performing various specific job tasks in order to demonstrate the essential job functions.

. Be clear that a proposed accommodation is open for discussion.

. Take note of how the employer has accommodated other similarly situated employees.

. Determine what customary industry practices are in accommodating similarly situated employees.

Is telecommuting a required reasonable accommodation? Typically it is not required for the reasons that the Sixth Circuit's majority opinion provide. This result is in contrast to the popular perception that telecommuting is replacing more on-site workplace employment positions. However, "face time" is still frequently considered an essential job function. Since reasonable accommodation situations are very fact specific, both employers and employees should consult an experienced employment law attorney in situations that arise.

This brief comment provides a limited educational overview of a complex legal topic and is not intended to provide legal advice. Always consult an experienced attorney in specific situations.