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EPLI: How Telecommuting Can Impact Employment Law


EPLI How Telecommuting Can Impact Employment LawSixth Circuit in EEOC-Ford Moto Co. Case Rules Telecommuting May be A Reasonable Accommodation under the ADA

Technology has changed the way we now work. We’re connected to our smart phones and tablets throughout the day, able to respond to client and employer requests immediately no matter we are. Services such as Go To Meeting and Skype allow us to hold conferences with people located all over the country and world. What’s more, many of us today have flexible hours, perhaps working four days a week. In fact, just 10 years ago, one in 10 places listed on Fortune‘s “Best Companies to Work For” offered or allowed telecommuting. Today, 80% of these companies do, with many employees using this benefit. But can a telecommuting arrangement pose a discrimination issue for an employer when denied, particularly when a disability is involved?

In a recent case involving Ford Motor Company, the Sixth Circuit held that a four-day per week telecommuting arrangement could be a reasonable accommodation for a disabled employee. The court noted that, “given the state of modern technology, the class of cases in which an employee can fulfill all requirements of the job while working remotely has greatly increased, and it is no longer the case that jobs suitable for telecommuting are extraordinary or unusual.”

In the Ford case, the plaintiff was responsible for group problem solving and utilized from time to time the automaker’s telecommuting policy, which authorized employees to work up to four days per week from a telecommuting site. Throughout the plaintiff’s employment, she suffered from irritable bowel syndrome (IBS). Her conditioned worsened and on several occasions she took family leave (under the Family Medical Leave Act). She was eventually put on a flexible schedule on a trial basis, but Ford found the arrangement problematic due to the fact that the plaintiff worked irregular and inconsistent hours. She then asked to telecommute up to four days per week as an accommodation for her IBS. Ford offered her two alternative accommodations: moving her cubicle closer to the restroom or finding an alternative position. She rejected these offers and filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) under the Americans with Disabilities Act (ADA). The trial court favored Ford, as the automaker contended that face-to-face contact with co-workers and suppliers was an essential function of the job. However, on appeal the Sixth Circuit reversed the trial court, stating that Ford did not prove that plaintiff’s physical-presence requirement was an essential function of the plaintiff’s job or that the telecommuting arrangement would create an undue hardship.

The takeaway: Employers with existing telecommuting policies are cautioned to not automatically reject an employee’s request to telecommute as a reasonable accommodation. During the interactive process, employers should carefully and objectively examine the job duties of the position in question to determine if attendance is truly required for the position. Additionally, an employer must be able to demonstrate why physical presence is required and must be able to do so by relying on reasons beyond generalized concepts such as “team work” and “interoffice interaction” as in the case presented by Ford.

Employers should also review their job descriptions and telecommuting policies to make sure they are very clear and specific. Additionally, Employment Practices Liability (EPLI) insurance is critical in responding to allegations of discrimination involving race, gender, disability, and other workplace issues. Axis Insurance Services specializes in EPLI, providing coverage for businesses across all business segments. Please give us a call at (877) 787-5258 to find out how we can help put together an insurance plan for your firm.

 

Sources: MONDAQ, USA Today

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Blogged on: May 16, 2014 by Mike Smith
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