Last month, in EEOC v. Ford Motor Co., the Sixth Circuit held 2-1 that the ADA may require an employer to permit telecommuting as a “reasonable accommodation” for a disabled employee, even if “attendance” is an essential job function.  The court distinguished between “attendance” and “physical presence at the [employer’s] facilities,” reasoning that, although the essentiality of the former is an established “principle,” the essentiality of the latter is “a ‘highly fact specific’ question” (citation omitted).  Finding that Ford had failed to prove that a steel buyer with irritable bowel syndrome, prone to suddenly and humiliatingly soiling herself, could not effectively perform her job if working remotely up to four days per week, the court reversed the district court’s grant of summary judgment in favor of Ford.

The court refused to defer to Ford’s business judgment that physical, as opposed to virtual, attendance was essential for the position of steel buyer because “face-to-face interactions facilitate group problem-solving.” It cited evidence, including that (1) the vast majority of the buyer’s action on-the-job communication was allegedly done via telephone even when the employee was physically at the office, and (2) other buyers had been permitted to telecommute one day per week.  Citing the evolution of technology over the past nearly two decades, the court declined to follow its 1997 pronouncement that jobs suitable for telecommuting were “unusual,” which would have effectively placed the burden on the employee to demonstrate reasonableness.

In dissent, Judge McKeague pointed out both the shortcomings and the potential consequences of the court’s comparison between the requested accommodation and other Ford buyers’ telecommuting arrangements.  The requested accommodation was far more cumbersome for the employer: other buyers telecommuted on pre-scheduled days, only once or twice per week, and pledged to report to work in case of emergency, even on their designated at-home days.  In blurring the distinction between the two telecommuting arrangements, Judge McKeague argued, the court forces employers to make a stark choice: either grant telecommuting to everyone or to no one.  The natural reaction, according to Judge McKeague will be to “tighten[] telecommuting policies” to avoid liability.

Despite the court’s avowal that it was not declaring “most modern jobs [to be] amenable to remote work arrangements,” this case has been perceived by many as “opening the floodgates,” to all sorts of telecommuting claims under the ADA.

It is also possible that the court’s refusal to defer to an employer’s justifications for offering telecommuting to this employee but not that one may have implications for race and sex discrimination suits under Title VII.  Today, many telecommuting arrangements are reached informally, with immediate managers permitting or refusing subordinates on a case-by-case basis with little to no oversight.  One could easily imagine a case where a minority or female employee completing work remotely is disciplined or not promoted for missed “attendance,” while similarly situated white and/or male employees are permitted to telecommute without adverse consequences.

With the case law unsettled and technology constantly evolving, employers should document every telecommuting request, the reasons for granting or denying it, and periodically self-monitor to ensure that grants and denials are not disproportionally distributed.