The Effect of Allowing Telework Due to COVID-19 on ADA Reasonable Accommodation Requests

Written by: Julie A. Bruch, O’Halloran Kosoff Geitner & Cook, LLC, Northbrook

Under the Americans with Disabilities Act (ADA), employers with 15 or more employees are required to provide reasonable accommodations for qualified applicants and employees with disabilities. 42 U.S.C. §12111(5)(A), 42 U.S.C. § 12112. A form of reasonable accommodation is “job restructuring” which could include allowing an employee to work from home through telework. 42 U.S.C. §12111(9)(B). As a result of the COVID-19 pandemic, many employers who had previously required all employees to be physically present in the office have allowed most or virtually their entire workforce to telework. Looking to the future, some employers may embrace these changes and conclude that telework is a cost-efficient way to operate. Other employers may wonder what precedent, if any, the decision to loosen restrictions on telework will have on their ability to reject such requests in the future.

The Standards Set Forth in EEOC v. Ford Motor Co.

In EEOC v. Ford Motor Co., 782 F.3d 753, 760 (6th Cir. 2015), the Sixth Circuit Court of Appeals, en banc, considered the standards to determine whether telework would be a reasonable accommodation for an employee that had a disability. Jane Harris, a resale buyer at Ford, had irritable bowel syndrome which caused her to suffer from fecal incontinence such that she occasionally could not make the one-hour drive to work without having an accident. EEOC v. Ford Motor Co., 782 F.3d at 758-59. Ford initially allowed Harris to telecommute on an ad hoc basis during trials that lasted one to two months. Id. at 759. During this time, Harris was unable to establish regular and consistent work hours and failed to perform the core objectives of the job. Id. Ford next allowed Harris to telecommute both during and after core business hours, but this attempt failed as well. Id. Harris then requested leave to work up to four days per week from home, noting that her prior supervisor told her that her job would be appropriate for telecommuting, Ford’s telecommuting policy generally said the same thing, and several of her coworkers telecommuted. Id.

However, Ford’s telecommuting practice and policy limited telecommuting for resale buyers to, at most, one set day per week. This aligned with its policy that provided that jobs requiring “face-to-face contact” were not appropriate for telecommuting, and its policy that disallowed telecommuting for employees that were not “strong performers,” and/or who had poor time-management skills. Id. Ford’s management had an interactive process meeting with Harris in which they went through Harris’s ten main job responsibilities and asked her to comment on how she could perform those tasks from home. Id. Harris admitted that she could not perform four of the ten tasks from home, including meeting with suppliers, making price quotes to stampers, and attending some required internal meetings. Id.

Ultimately, Ford determined that Harris’s proposed accommodation was unreasonable, noting that in addition to the four tasks that she admitted could not be performed from home, four could not effectively be performed from home, and the remaining two were not significant enough to support telecommuting. Id. at 759-60. Instead, Ford offered to move her closer to the restroom and to look for a job better suited for telecommuting, but Harris rejected those alternatives and filed a charge of discrimination with the EEOC. Id. at 760. After continued poor performance, Ford terminated Harris and the EEOC sued Ford on behalf of Harris alleging that it failed to reasonably accommodate Harris in violation of the ADA and fired her in retaliation for filing her charge. Id.

Initially, the district court granted Ford’s motion for summary judgment, but a divided panel of the Sixth Circuit reversed on both claims. Id. The court granted en banc review and considered whether regular and predictable on-site job attendance is an essential function of Harris’s resale buyer job. Id. at 760-61. In answering that question in the affirmative and ruling in favor of Ford, the court cited the “general rule that, with few exceptions, ‘an employee who does not come to work cannot perform any of his job functions, essential or otherwise.’” Id. (citing EEOC v. Yellow Freight Sys., Inc., 253 F.3d 943, 948 (7th Cir. 2001) (en banc)). The court further noted that “most jobs require the kind of teamwork, personal interaction, and supervision that simply cannot be had in a home office situation.” EEOC v. Ford Motor Co., 782 F.3d at 761 (citing Rauen v. U.S. Tobacco Mfg. L.P., 319 F.3d 891, 896 (7th Cir. 2003)).

To determine whether attending work on-site is essential, the court looked to Ford’s words, policies, and practices, and noted that “in most jobs, especially those involving teamwork and a high level of interaction, the employer will require regular and predicable on-site attendance from all employees.” EEOC v. Ford Motor Co., 782 F.3d at 762. The court then looked to the ADA regulations which include seven factors to consider as to whether a job function is essential: (1) the employer’s judgment as to which functions are essential; (2) written job descriptions prepared before advertising or interviewing applicants for the job; (3) the amount of time spent on the job performing the function; (4) the consequences of not requiring the incumbent to perform the function; (5) the terms of a collective bargaining agreement; (6) the work experience of past incumbents in the job; and (7) the current work experience of incumbents in similar jobs. Id. (citing 29 C.F.R. §1630.2(n)(3)(i)-(vii)).

The court also considered the EEOC’s informal guidance which provides that “an employer may refuse a telecommuting request when, among other things, the job requires ‘face-to-face interaction and coordination of work with other employees,’ ‘in-person interaction with outside colleagues, clients, or customers,’ and ‘immediate access to documents or other information located only in the workplace.’” EEOC v. Ford Motor Co., 782 F.3d at 762 (citing EEOC Fact Sheet, Work At Home/Telework as a Reasonable Accommodation (Oct. 27, 2005), http://www.eeoc.gov/facts/telework.html; cf. EEOC, Employer Best Practices for Workers with Caregiving Responsibilities, http://www.eeoc.gov/policy/docs/caregiver-best-practices.html (Jan. 19, 2011) (including “impromptu team meetings” as a valid factor for denying a flexible work schedule)). These factors all weighed in favor of Ford’s argument that telework was not a reasonable accommodation for Harris. EEOC v. Ford Motor Co., 782 F.3d at 766.

Telework Going Forward Post-COVID-19

Once the risks associated with COVID-19 have lessened, many employers will likely demand the return of employees to the office environment. While some employees will be happy to return to office spaces, employees with disabilities may seek to continue telework either full or part-time indefinitely as a reasonable accommodation. For those employers that do not want to permit this type of arrangement on a permanent basis, they must take steps to show why such an accommodation request would not be reasonable. This is especially true in the era of online virtual meetings where employees can see each other and communicate in a group setting.

A 2017 study by the European Foundation for the Improvement of Living and Working Conditions reported on the impact of telework in a number of European nations. See EUROFOUND AND THE INTERNATIONAL LABOUR OFFICE (2017), Working anytime, anywhere: The effects on the world of work, Publications Office of the European Union, Luxembourg, and the International Labour Office, Geneva, http://www.ilo.org/wcmsp5/groups/public/---dgreports/---dcomm/---publ/documents/publication/wcms_544138.pdf. The study found both positive and negative effects of telework. For example, positive factors were a “reduction in commuting time, greater working time autonomy leading to more flexibility in terms of working time organization, better overall work-life balance, and higher productivity.” Id. at 1. The study found that such positives could lead to “increased motivation and reduced turnover as well as enhanced productivity and efficiency, and from a reduction in the need for office space and associated costs.” Id. In contrast, the study found that negative factors included “the tendency to lead to longer working hours, to create an overlap between paid work and personal life (work-home interference), and to result in work intensification.” Id. In addition, mental health considerations negatively impacted employees who telework with findings showing that 42% of those who telework report that they wake up repeatedly during the night versus 29% of those work in an office environment. Id. at 38. Employees who telework also reported feelings of isolation and lack of access to informal information sharing. Id. at 37. Additionally, 41% of employees who teleworked reported high levels of stress, compared to just 25% among those always working at the employer’s premises. Id. at 38.

Irrespective of an employer’s plan going forward, it is advisable for management to send out a reminder to staff that telework has been allowed this past year due to the unprecedented challenges brought about by COVID-19 and it was never the intention of the employer to permanently modify the job descriptions of affected employees. Employers who have allowed employees to telework in 2020 should also undertake an analysis of how best to achieve optimal work performance from all staff going forward. Employers should analyze each employee’s essential job functions and determine whether achievement of each function has improved or has suffered during the time the employer teleworked. Reach out to employees for feedback on how telework has improved or harmed their ability to do their job. It may not be possible for employers to make determinations of success or failure by job title because some employees might work better at home than others who have the same job title. If that is the case, try to determine what attributes of each employee account for their success or failure at telework and incorporate those findings into your policy. That may mean a continuation of telework for many employees or it could result in an attempt to re-establish pre-COVID normalcy in the workplace with staff all returning to the office. Whichever approach an employer would like to take, employment attorneys should use these tools and factors to assist clients in developing policies to guide the workforce into 2021 and beyond.

About the Author

Julie A. Bruch is a partner with O’Halloran Kosoff Geitner & Cook, LLC. Her practice concentrates on the defense of governmental entities in civil rights and employment discrimination claims.