The Ever-Changing Workplace

Am I Really Here?:Attendance and the ADA

May 09, 2014
The Americans with Disabilities Act of 1990 (ADA) changed the employment process significantly for employers. (See 42 U.S.C. § 12112) The ADA was designed to help create opportunities for individuals who were capable of exceling in the workplace with a few "reasonable accommodations" from employers. Individuals who had a disability (a physical or mental impairment that substantially affects a major life activity), but were otherwise qualified, could now be assured that they were protected from discrimination under Title I of the Act. Since that time, employers have tried to understand how to make reasonable accommodations for protected employees. The ADA continues to evolve and change as technologies advance in the workplace. The definition of what qualifies as a "reasonable accommodation" continues to progress and expand. 

In one recent ADA case in the Sixth Circuit Court of Appeals, the court held that with the rapid changes in technology, telecommuting is emerging as a method for employers to accommodate disabled employees. EEOC v. Ford was decided by the Sixth Circuit in April 2014. In this case, Jane Harris, who had been a resale buyer for Ford was denied the accommodation of being allowed to telecommute up to four days a week under the ADA. Harris had a severe case of irritable bowel syndrome which made it difficult to work in a normal workplace at times. After reviewing Harris' request, Ford decided that, due to Harris' position, she needed to be in the office. Harris' employment was terminated shortly after. The district court agreed with Ford, but the Sixth Circuit reversed and remanded so for a jury to decide. The Sixth Circuit, in the 2-1 decision, found that the meaning of "attendance" at work was a fluid concept. The court articulated that". . . as technology has advanced in intervening decades, and an ever-greater number of employers and employees utilize remote work arrangements, attendance at the workplace can no longer be assumed to mean attendance at the employer's physical location." Ford had a telecommuting policy in place, and the company had allowed other individuals to use this option under different circumstances. See Equal Employment Opportunity Commission v. Ford Motor Co. 

So, what does this mean for employers? Employers need to think outside of the box when it comes to potential accommodations. Telecommuting is a low-cost option for many employers which could make it a "reasonable accommodation" for protected employees. In light of this case, employers should careful review and clarify their telecommuting policy. Additionally, businesses need to reassess their employee job descriptions. All job descriptions should clearly indicate if a particular job requires on-site attendance. Vague descriptions about an employee's responsibilities or need to be at the office (or other locations) could lead to problems with ADA compliance. In the event of a suit, a review of the job description will play a large role in determining whether an employee was qualified to do a job with a reasonable accommodation. 

Nicole Crump, JD, CIC
Director of Employment ADR
EDR Systems 

This information is the opinion of the writer and is not meant to be construed as creating an attorney-client relationship or as legal advice to an individual or business. Please consult your attorney if you need legal advice on the issues above.