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Absence Makes the Workplace . . . Stronger? Absence Makes the Workplace . . . Stronger?

Absence Makes the Workplace . . . Stronger?

Most readers of this space grew up working in environments where physical presence in the workplace on a daily basis – now referred to by employment hipsters as "presentee-ism" – was non-negotiable.  Three trends involving changes in technology, employee preference and a ground-breaking federal court decision may now be converging to change this presumption permanently for white-collar workers.  Informed employers should consider not only what they should do to attract and retain a new generation of talented workers, but also what they must do to keep up with their evolving legal obligations.
Changes in Technology
The shift in our economy from the Industrial Age to the Information Age has seen a corresponding shift not just in what is being produced but also where.  For workers in predominantly office environments (including administrative support functions for industrial employers), morning commutes, face time, and bricks and mortar are being replaced by telecommuting, working-from-home programs, and "results-only work environments" in which working remotely is not only tolerated but encouraged. 
Knowledge workers in individual contributor roles now have the ability to do much of their work as easily from home or the nearest coffee shop through remote access, wireless technology and ubiquitous mobile devices.  For workers involved in more collaborative efforts, virtual technologies such as Live Meeting, WebEx and Skype allow them to meet face-to-face – only those faces may be thousands of miles away from each other instead of across a conference table.
Changes in Employee Preference
Employee preferences are changing at an equally rapid pace.  A study published in 2011 found that regular telecommuting by U.S. workers grew by 61 percent between 2005 and 2009.  Based on those trends, the study predicted that regular telecommuters would total 4.9 million by 2016. 

Even more Americans are taking advantage of the opportunity to work at home on a more limited basis.  According to a Census Bureau report cited in The Wall Street Journal on March 5, 2013, approximately 9.4 percent of U.S. workers, or 13.4 million people, worked at least one day at home per week in 2010, compared with 7 percent, or 9.2 million, in 1997.  (As but one example, any guess as to where this article was written?)

The growing employee preference for working remotely is highlighted in a report prepared by Global Workplace Analytics summarizing the results of over 500 studies on the impact of work-from-home programs. According to these studies:
  • 79 percent of people want to work from home.
  • 36 percent would choose it over a pay raise.
  • "Generation Y" workers are particularly attracted to flexible work arrangements, rating them as 8 on a 10 scale for impact on overall job satisfaction.
  • 61 percent of employees who do not currently work from home say they are willing to give up some pay in exchange for being allowed to do so.
  • 46 percent of companies that allow telecommuting say it has reduced attrition.
  • 72 percent of employers say telework has a high impact on employee retention.
Yahoo's new CEO, Marissa Mayer, apparently did not get the memo when she announced in early 2013 that employees would no longer be allowed to work from home regularly, in an effort to increase collaboration and teamwork.  The backlash that followed her announcement in social media and the press may be the best evidence that working from home has now become a mainstream expectation. 

Changes in the Law
Although whether and to what extent employees would be allowed to work home has been left to individual employers up to this point, a recent decision by the United States Court of Appeals for the Sixth Circuit may change that.
 In Equal Employment Opportunity Commission v. Ford Motor Co. (Case No. 5:11-cv-13742), the Court reversed its prior position that telecommuting was not a reasonable accommodation for most jobs under the Americans with Disabilities Act (ADA) and held that there was a genuine issue of fact requiring trial over whether Ford was entitled to require physical presence at the worksite for one of its workers. 
The individual employee in that case, Harris, was a resale buyer with irritable bowel syndrome, which made it more difficult for her to maintain regular physical presence in her office.  After her absences began to affect her job performance, Harris requested the ability to telecommute "on an as-needed basis" as an accommodation to her condition. 
During the interactive process required by the ADA, Ford met with Harris and offered a number of alternative accommodations, including moving her cubicle closer to the restroom or working with her to find another job more suitable for telecommuting.  When she rejected those alternatives, Ford ultimately terminated her employment based on its judgment that the essential functions of her specific job required her to have physical presence at its facility in order to interact with other members of her team.  The EEOC then commenced a lawsuit under the ADA on her behalf.
The trial court granted Ford's motion for summary judgment based on federal court precedent holding that telecommuting was generally not a reasonable accommodation required by the ADA.  The Sixth Circuit reversed, however, and made a number of remarkably broad statements about employers' evolving obligations to consider telecommuting requests made under the ADA.
Among other things, the Sixth Circuit noted that its prior decisions holding that physical attendance on the job was an essential function of most jobs had been issued when "technology was such that the workplace and an employer's brick-and-mortar location were synonymous."  Due to changes in technology and work practices since then, however, the Court observed that: 
     [A]ttendance at the workplace can no longer be assumed to mean attendance at the employer's physical location.  Instead, the law must respond to the advance of technology in the employment context, as it has in other areas of modern life, and recognize that the "workplace" is anywhere that an employee can perform her job duties.
The Court noted that while Ford produced evidence that face-to-face interaction and physical attendance were preferable for various aspects of Harris' position, it felt no obligation to defer to Ford's business judgment in this regard, stating:
     [W]e should not abdicate our responsibility as a court to company personnel boards:  While we do not allow plaintiffs to redefine the essential functions of their jobs based on their personal beliefs about job requirement . . .  neither should we allow employers to redefine the essential functions of an employee's position to serve their own interests.  Rather, we should carefully consider all of the relevant factors, of which the employer's business judgment is only one.
The Court went on to express its doubt that Harris' physical presence at work was necessary to allow her to perform the essential functions of her job, stating:  "communications technology has advanced to the point that it is no longer an 'unusual case where an employee can effectively perform all work-related duties from home," and holding:  "[i]n this case, we respond to the world as it exists now, and conclude that there is a genuine dispute of material fact regarding whether Harris can perform all of her job duties from a remote location."  
What Should Employers Do Now?
For the moment, the immediate impact of the Sixth Circuit's decision will be felt by those employers within its jurisdiction of Ohio, Michigan, Kentucky and Tennessee.  Ultimately, the limits of U.S. employers' obligations to consider telecommuting as a reasonable accommodation under the ADA likely will be determined by the United States Supreme Court or by Congress through legislation.  In the meantime, informed employers should do the following:
  • From a legal standpoint, it may no longer be safe to have a bright-line rule that telecommuting requests will not be considered under any circumstances.  Instead, employers should consider such requests on a case-by-case basis, analyzing and documenting whether the essential functions of the position genuinely require physical presence in the workplace or can be performed as effectively remotely.
  • From a business standpoint, consider whether allowing employees to work from home may actually improve productivity, employee job satisfaction, attrition and recruiting, particularly for incoming generations of workers already acclimated to the virtual world.  If work-from-home policies actually work to produce better workplaces and better business results, then it makes good business sense to consider them, whether legally required to do so or not.
For questions regarding telecommuting policies and the various legal issues implicated by them, please contact any member of Ice Miller LLP's Labor and Employment Group.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.
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