Permitting employees to telecommute several days a week might not be a reasonable accommodation under the Americans with Disabilities Act after all, says the Sixth Circuit Court of Appeals. The court recently vacated its earlier three-judge panel decision against Ford Motor Company in EEOC v. Ford Motor Co. which resulted from Ford's refusal to allow an employee with irritable bowel syndrome to work from home. All 13 appeals court judges will now reconsider whether the panel's decision in favor of the EEOC was consistent with the court's earlier decisions that “predictable attendance” was a job requirement. Ann Arbor attorney Angela Jackson of Hooper Hathaway talked to The Legal News about this issue.
Mathis: Were you surprised that the Sixth Circuit Court of Appeals vacated its earlier three-judge panel decision against Ford Motor Company?
Jackson: Yes, I was surprised. The Sixth Circuit generally grants only a few petitions for rehearing en banc per year. Under the federal rules of appellate procedure, rehearing en banc is disfavored.
Before granting a petition for rehearing, the Sixth Circuit must be satisfied that (1) the panel decision conflicts with a decision of the U.S. Supreme Court, or of the Sixth Circuit, such that en banc review is necessary to ensure uniformity, or (2) the proceeding involves a question of exceptional importance. If the proceeding involves an issue on which the panel decision conflicts with the authoritative decisions of other Circuit Courts, it is more likely to be granted.
Mathis: Twenty years ago, telecommuting was supposed to be the next big thing. But that really hasn’t happened in significant numbers. Why is that?
Jackson: I think that it can be challenging to effectively manage a telecommuting employee, and to track productivity and performance. The ease with which we can conduct work remotely without having to step into our offices is a wonderful freedom, but we can lose sight of the importance of face-to-face communication. Telephone calls, emails and video-conferences are a convenient way to communicate, but they can be ineffective and the technology can be cumbersome.
I think many employers realize that face-to-face meetings within the organization can be important tools for problem solving and generating ideas, among other things. It can also be an important management tool to see the face-to-face interactions between employees and others both in and outside of the organization.
Employers might be concerned about the security of their information, and that security being compromised by employees who work remotely. Trade secrets and confidential information can be exposed by insecure connections, and by employees retaining both hard and electronic information on their personal devices and in their homes.
Finally, the off-site employee misses out on building relationships with co-workers and managers, and can become a target of resentment for other employees who would like the flexibility afforded by telecommuting.
Mathis: Is it at the discretion of the employer whether or not to allow employees – with or without disabilities – to work from home? How frequently is this done?
Jackson: Ford Motor Company had a policy allowing employees the opportunity to telecommute up to four days per week, but the policy clearly left it to the discretion of the company whether or not to grant an employee the right to work remotely, on a case by case basis. I think the frequency depends on the nature and needs of the organization. Some jobs lend themselves more easily to telecommuting than others, but the inherent problems with supervising employees who work remotely will likely continue to be a barrier to the widespread popularity of telecommuting.
Last year, Marissa Mayer, the CEO of Yahoo received heavy criticism after implementing a policy banning employees from working from home. She has defended the policy explaining her belief that employees can be more productive when they are alone, but are more collaborative and innovative while working together. She pointed to Yahoo’s new weather application and explained her position that the product could not have been produced without group collaboration.
Mathis: What can employers do to avoid litigation?
Jackson: First and foremost, get advice from an employment lawyer! It is important to think about what kind of employment policies are appropriate for the business, so that employees understand what is expected of them before a problem arises, and so employers can think through how they may want to issues that might arise.
It is also important for employers to get advice from an employment lawyer when an employee comes with a request for an accommodation, or with any other question that creates a risk from which a serious dispute might develop between the employer and employee. Winning a trial or appeal is great, but it is really rewarding to know that you have helped a client avoid a lawsuit in the first place.
Mathis: Do you think the full court will reach a different conclusion than the panel did in EEOC v. Ford?
Jackson: I think there is a good chance that the court will reach a different result here. Ford argues in its petition that every circuit that has addressed the issue has held that regular attendance is an essential function of most jobs, and jobs that can be performed remotely are the rare exception.