Unreasonably Sporadic Telecommuting

By Bryan Stillwagon

One year ago, we reported on the Sixth Circuit’s ruling that telecommuting could be a reasonable accommodation for a resale steel buyer at Ford suffering from irritable bowel syndrome. There, the employee requested to telecommute as many as four days a week. Ford denied the request because the position, at least according to Ford, required an employee’s physical presence and was unsuitable for telecommuting.

After a rehearing by the full Sixth Circuit, a majority (8-5) has changed course and ruled in Ford’s favor. EEOC v. Ford Motor Co., No. 12-2484 (6th Cir. Apr. 10, 2015). First, there was evidence that a resale buyer could not work unpredictable at-home schedules without lowering production standards. Second, other employees’ telecommuting arrangements were scheduled and predictable, but plaintiff’s proposed arrangement (up to 4 days per week at home, unscheduled in advance, refusal to come in if needed) was not. Third, though technology (e-mail, teleconferencing, etc.) had undoubtedly advanced, technology was not a complete substitute for a resale buyer’s physical presence.

Might telecommuting still be an accommodation that is reasonable for some positions? Absolutely, but not if the job can be best performed only by the employee actually being there, as opposed to a disembodied voice over the phone, or an e-mail or text message.