You may think that the federal, state and local courts move at a glacial pace, but they often deliberate and resist change of opinion on employment law matters because, well, the modern workplace is a living, breathing, complex organism.
Telecommuting is one such complexity, as are the multitude of situations that employers need to consider now that working at home may qualify as a reasonable accommodation under the Americans with Disabilities Act.
Need proof? Look no further than the U.S. District Court for the Southern District of Ohio ruling in Core v. Champaign County, No. 3:11-cv-166 (July 30, 2012). The court determined a telecommuting arrangement to be a reasonable accommodation for an employee with asthma and a severe chemical sensitivity. (For more information, see Employer May Have to Allow Employee with Chemical Sensitivity to Work from Home.)
The Core decision opens an avalanche of questions about telecommuting as “reasonable accommodation,” especially given the expanding scope of medical conditions protected under the ADA Amendments Act. Core is a remarkable decision, really, when you take into account the long list of court decisions that have characterized working at home as “almost never a reasonable accommodation” (Rauen vs. United States Tobacco Mfg., No. 01-3973 (7th Cir. 2003)).
Telecommuting may seem particularly unreasonable when an employee is a notoriously poor performer and has difficulty working with others. It also may seem unreasonable when the employee is frequently absent and her position demands a great amount of interaction. So it stands to reason that an employer would not have to permit such a low achiever to work from home as a reasonable accommodation if she is disabled by ADA standards, correct?
The court’s answer, presently, is a clear and unequivocal “correct.” At least it was in the U.S. Equal Employment Opportunity Commission lawsuit on behalf of a resale buyer who alleged failure to accommodate and retaliation under ADA after her company denied her request to telecommute, and then fired her for excessive absenteeism and poor performance. The case is EEOC v. Ford Motor Company, No. 11-13742 (Sept. 10, 2012).
“An employee who cannot meet the attendance requirements of the job at issue cannot be considered a ‘qualified’ individual protected by the ADA,” the U.S. District Court for the Eastern District of Michigan, Southern Division said, citing from case law in its summary judgment in favor of Ford.
Although the evidence from EEOC v. Ford suggested that Jane Harris could perform some of her duties at home, her managers said that she could not successfully perform her essential job functions at home on a regular basis of “up to four days” per week. Harris suffered from irritable bowel syndrome.
ADA requires the courts to consider “the employer’s judgment as to what functions of a job are essential.” [42 U.S.C. §12111(8)]
EEOC argued that Harris should not have been penalized for her excessive absenteeism because she would not have incurred so many absences had she been permitted to telecommute as an accommodation for her condition. EEOC also contended that on some of the days that Harris was absent, she “was on approved medical leave, performed work from home, or performed work from home while taking intermittent FMLA leave.”
In addition to noting that Harris was absent more often than she was at work, Ford documented specific deficiencies in a performance review and placed her on a performance improvement plan. Ford then provided proof that Harris failed to meet the performance objectives outlined in the PEP.
Because Harris’s job often involved spur-of-the-moment, group problem-solving with members of the resale team and suppliers, it does not belong in the “exceptional” class of jobs that could potentially be performed at home without a substantial reduction in the quality of the performance, the district judges said.
“The reason working at home is rarely a reasonable accommodation is because most jobs require the kind of teamwork, personal interaction, and supervision that simply cannot be had in a home office situation,” the judges said, citing Rauen as conclusive precedent.
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