248-409-1900 dburke@mi-worklaw.com

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.