By:  Anne-Marie L. Storey, Esq.

Many employers have struggled with the issue of whether telecommuting is a reasonable accommodation for an employee with a disability under the ADA and/or MHRA.   We reported earlier about a decision from the Sixth Circuit which had vacated a summary judgment decision in favor of the employer on the basis that the employee’s telecommuting request was unreasonable as a matter of law.  The court decided that the parties were entitled to present the case to a jury.

You might recall that the issue in the case was whether an employee with irritable bowel syndrome could telecommute on the basis that her symptoms disrupted her work schedule and could be better managed at home.  The problem was, her performance even in the office was not good and her job required that to be effective she needed to have face-to-face communication and regular predictable attendance.   The employer had attempted some limited telecommuting, among other forms of accommodation of her schedule, but her performance and attendance continued to be deficient.  She was ultimately terminated and sued for failure to provide the accommodation she requested, which was to work from home for up to 4 days a week.

The district court granted summary judgment for the employer on the basis that the request was unreasonable as a matter of law.  The Sixth Circuit initially reversed the decision.  Then, a full panel of the Sixth Circuit agreed to hear the claim.   The panel recently issued its decision.  It found that a request to telecommute is not an automatic form of reasonable accommodation.   It held that if the employer can show that in order to perform effectively the employee needs to be able to engage in face-to-face communication and regular predictable job site attendance, then the request may not be reasonable.   In doing so, it noted that it is common sense that “regular, in person attendance is an essential function… of most jobs…”

The decision is a welcome conclusion but is not a free pass to deny telecommuting in all situations.  The facts that weighed against it as a form of reasonable accommodation in this case included the employee’s bad performance and attendance.  The court said it was appropriate to consider those issues.  The employer also demonstrated that it had never granted a similar accommodation, although it did allow limited forms of telecommuting.  As always, each case will require an individualized assessment.    This is also a good reminder that job descriptions are important to the assessment of essential functions.




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