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Telecommuting Decision Expands Duty to Accommodate and Underscores Need For Work-At-Home Guidelines

Telecommuting Decision Expands Duty to Accommodate and Underscores Need For Work-At-Home Guidelines

By:  Bill Pilchak – 7/4/14

          Until April, 2014, employers in the Sixth Circuit (Michigan, Ohio, Kentucky and Tennessee) were well-equipped to resist employee requests to work from home. Many opinions held that:

  • Regular and predictable attendance and physical presence in the workplace were essential functions of the job;
  • Jobs often require face-to-face interaction with clients and co-workers;
  • A request to work from home was unreasonable where “productivity inevitably would be greatly reduced;”
  • “Except in the unusual case where an employee can effectively perform all work-related duties at home, an employee who does not come to work cannot perform any of his job functions, essential or otherwise.”
  • Telecommuting prevented the remote employee from interacting with other team members.

          Pilchak & Cohen has been watching the development of technology with this law in mind.   Nowadays, business owners manage their businesses from remote and sometimes exotic locations, millennial employees are recruited with the promise of job-flexibility through work at home options, employees with parenting responsibilities are accommodated to prevent departures and salaried employees are expected to respond to e-mail and phone calls at all hours. Apparently, the EEOC has been watching as well.

          In EEOC v Ford Motor Co., __ F3d __ (6th Cir., April 22, 2014), the Sixth Circuit accepted the EEOC’s argument that “as technology has advanced…and an ever-greater number of employers and employees utilize remote work arrangements, attendance at the work place can no longer be assumed to mean attendance at the employer’s physical location.” (emphasis added.) The Court noted that teleconferencing technologies are now commonplace and thus working from home may often be a reasonable accommodation.

          The Sixth Circuit did not accept Ford’s argument on the importance of a team-member’s physical presence, indicating that neither employees nor employers should be able to redefine the essential functions of jobs, so that now a jury will make the determination whether the employee must actually go to work. While the Court’s citation to jobs where physical presence is required (janitors, nurses, etc.) provides some ammunition for some cases, for many white-collar jobs the employer’s analysis must be more in-depth if employers wish to avoid telecommuting.   For example, the employee in this case was a “resale steel buyer” who served as an intermediary between steel suppliers and stampers to assure delivery of raw material for parts. She suffered from irritable bowel syndrome, sometimes preventing commuting and sometimes resulting in incontinence at work.

          If there is any silver lining in the EEOC v Ford opinion, it is the point that one’s inability to work during “core business hours” is an issue separate from telecommuting. The Sixth Circuit noted that “requests for flex time schedules may be unreasonable because businesses cannot “operate effectively when their employees are essentially permitted to set their own hours.”

          Most HR personnel will recognize the practical problems inherent in the ruling:

  1. Employers are prohibited from informing employees that a practice has only been allowed as an accommodation under the ADA, and as such all employees will demand to work from home;
  2. We find that accommodation issues seldom occur with an excellent employee with a legitimate disability;       Too often, marginal or even troublesome employees claim disabilities to avoid discipline or be excused from undesirable aspects of a job;
  3. Employees may have to access sensitive information, not normally accessible outside of the employer’s secured system.

The new opinion suggests that companies establish guidelines on the use of telecommuting. Here are some “off the top of our heads” ideas that might be incorporated.

  • Absent required accommodation under the ADA, a policy should provide telecommuting as an option only for employees with a demonstrated objective record of exemplary performance, attendance or significant length of service, to prevent abuses by untried or marginal employees.
  • Require measures to assure the employee is actually working the promised hours, such as:

  o   To check in by e-mail to the supervisor when the employee is commencing work, taking time off for meals, medical treatment or inability to work and when finishing work;

  o   To be available by land-line phone, if one exists in the home and to have immediate access to data sources during calls. (A cell phone call taken on the beach is often useless to the employer, and unfair to co-workers.)

o   Alternatively, consider requiring connections through video options such as Skype, Gmail video chat, Go-To-Meeting, etc., so the employee’s location is apparent.

o   Require timely responses to supervisor and co-worker e-mail and voicemail messages during regularly scheduled hours, to assure the employee continues to be a resource to the staff at HQ.

  • Set production standards measured by the employee’s in-office record, to assure there is no fall-off. For example, ten reports per week. The ADA permits employers to maintain production standards, even if accommodation is offered.
  • If being out of the office necessarily results in decreased ad-hoc work load, balance that with assignments that will fill the employee’s time. To return a balance to office morale, if the remote employee avoids some undesirable duties by working from home, perhaps the duty assumed would be one those in the office prefer to avoid. Be candid that the assumed duty offsets the undesirable avoided duty.
  • Requiring whatever in-office time is possible, so intellectual capital can be shared, and training can be imparted to juniors. Departmental meetings, required presentations, working lunches and the like are probably good tools for assuring some in-office time.


Wouldn’t We All Like to Be Excused From Cleaning Toilets?

Wouldn’t We All Like to Be Excused From Cleaning Toilets?

By Dan Cohen – 3/18/14

I recently had the pleasure of learning that one of my cases had been affirmed by the United States Court of Appeals for the Sixth Circuit.  The case, Horn v. Knight Facilities Management, No. 12-2688 (February 25, 2014), was originally filed in the federal district court for the Eastern District of Michigan. The plaintiff had alleged a violation of the Americans with Disabilities Act when my client refused to provide her with an accommodation that would have excused her from performing the worst part of her job.  Although Congress had recently stripped my client (and all employers for that matter) of several key defenses to ADA claims when it passed the ADA Restoration Act, the law remains that an accommodation must still be a reasonable and effective one.

The facts of the case are straight forward.  Plaintiff was responsible for using certain cleaning chemicals to perform her cleaning duties at a customer’s site.   Shortly after she was assigned a new cleaning route, which required her to clean 8 restrooms, she claimed a sensitivity to the chemicals and brought a note to work that she could only clean restrooms for up to two hours a day.  My client accommodated her request and reduced the number of restrooms for which she was responsible from 8 to 4. Thereafter, plaintiff continued to claim difficulties working with the chemicals and brought in a “no exposure to cleaning solutions” restriction.   Because the cleaning solutions were used throughout the facility, and not just in the restrooms, my client placed her on a leave of absence and ultimately terminated plaintiff’s employment when months later, her restrictions were unchanged.

As you can imagine, the plaintiff was not real happy when she wasn’t given a cleaning route without toilets to clean.  But, cleaning toilets was an essential function of the job.  There were no available positions without toilets to clean and all jobs required use of the chemicals.  Given these facts, I went for the admission at plaintiff’s deposition that (1) she could work anywhere in the world as long as the chemicals were not being used, and (2) she was aware of no other locations that used the precise chemicals she was using.  When I obtained both admissions, I thought I was on my way to summary judgment just like 15 years earlier when I obtained those admissions in a case where an employee had become sensitive to the primary chemical used in its formula for manufacturing high school chemistry lab tables.  My theory was that plaintiff was not disabled under the ADA because a substantial limitation of the major life activity of working required a limitation of one’s ability to perform a broad range of jobs rather than a single job at a single location.

Had this case been filed a year earlier, I probably would have gotten the case thrown out on this basis, but the ADA Restoration Act has effectively limited the defense’s ability to beat an ADA case on the basis that the individual is not disabled.  Indeed, the intent of the Act was to lower the bar on establishing disabilities. I made the argument nevertheless, but neither the Eastern District of Michigan nor the Sixth Circuit decided the question.  Both courts adopted my secondary argument: that my client had an absolute right to rely upon the restrictions placed upon the plaintiff by her own doctor at the time (nothwithstanding the doctor’s wavering testimony two years after-the-fact).  Those restrictions precluded any reasonable and effective accommodation because even if plaintiff was excused from cleaning restrooms, “no exposure to cleaning solutions” means just that: she could not work with the chemicals whether cleaning toilets, counter tops, hallway floors or otherwise.  So, the next time you receive a request for accommodation that purports to excuse an employee from doing something she does not like, think twice about just giving in. Look carefully at the request, and what it really means.  Otherwise, you are likely to receive a multitude of such requests.