Courts have repeatedly recognized that “regular job attendance” is an essential function of most jobs that need not be altered in order to reasonably accommodate a disabled employee. This common sense notion, however, has come under increasing scrutiny given the technological advancements that have made telecommuting and other remote working arrangements routine in many workplaces.
A full panel of the Sixth Circuit has reaffirmed that an employer need not automatically allow an employee to telecommute as a reasonable accommodation under the ADA if the employer can show that effective job performance requires face-to face communication and regular predictable on site job attendance. In a welcome decision for employers, this opinion reversed a prior decision of a three judge panel of the same court originally issued in May 2014.
In EEOC v. Ford Motor Company, the EEOC sued Ford on behalf of Jane Harris who worked for Ford as a resale steel buyer. Harris suffered from irritable bowel syndrome. Her symptoms caused her to repeatedly show up to work late, leave work early, and on many occasions miss work entirely. In the latter years of her employment, she received consistently low performance ratings and job criticism.
Ford maintained a formal telecommuting policy and, at various times, had allowed Harris and other resale buyers to telecommute up to two days per week provided that the employee would come into work on a telecommuting day when needed. As a prior accommodation for Harris’s condition, at various times Ford had allowed Harris to work “flex time” and to telecommute up to one day per week.
Eventually, Harris requested that she be allowed to work from home “up to 4 days a week” as an accommodation of her condition. Ford rejected this request as excessive. In the meantime, her performance and attendance continued to deteriorate and she eventually was terminated.
The district court granted summary judgment for Ford and dismissed the case prior to trial, holding that Harris’s telecommuting request was unreasonable as a matter of law. On appeal, a three judge panel of the Sixth Circuit initially reversed this decision, holding that the EEOC and Harris were entitled to a jury trial on the issue of whether Ford violated the ADA by failing to grant Harris’s telecommuting request. A full panel of the Sixth Circuit voted to vacate this decision and review it “en banc” (i.e. by all the judges on the court). The full Sixth Circuit ended up siding with Ford and affirmed the district court’s original decision dismissing the EEOC’s claim on summary judgment.
The Sixth Circuit’s original decision had been widely criticized by employer groups because it created a “no good deed goes unpunished scenario,” under which employers that offered some form of telecommuting risked being second guessed by federal juries as to whether a decision to deny a particular telecommuting request made to accommodate a potential disability was “reasonable” or “unreasonable.”
In contrast, the full panel of the Sixth Circuit emphasized that while the decision of whether a particular accommodation should be granted under the ADA depends on the facts of each particular situation, the facts at issue in this case established that Ford acted reasonably and did not violate the ADA. In so doing, the court emphasized the “common sense” notion that “[r]egular, in person attendance is an essential function… of most jobs, especially the interactive ones.”
The court further rejected the EEOC’s contention that Ford’s past allowance of telecommuting for other resale buyers created a factual dispute as to whether Harris’s specific request was reasonable in this case by pointing out that unlike other telecommuting arrangements, under which no one actually telecommuted more than one set day per week and agreed in advance to come into work on their telecommuting day if needed, was a “far cry” from Harris’s request that she be allowed to work from home up to four days per week.
The court also pointed out that Harris’s performance and attendance had been substandard when she had been granted a more limited telecommuting and flex-time arrangement in the past, and that it was appropriate for Ford to consider her prior performance in denying Harris’s request. This latter point is particularly significant, as the court explicitly noted that an individual’s performance may be a relevant factor in determining whether a particular accommodation is reasonable.
Finally, the court rejected the “common sense” charm of the EEOC’s contention that technology had advanced enough for employees to support “at least some job functions at home.” The court found that despite the undeniable advancements in technology, the record in the case failed to show that a great technological shift had made Harris’s highly interactive job one that could be performed at home.
In a lengthy dissent, one judge opined that the EEOC had presented sufficient evidence to have the case submitted to a jury for a decision as to whether Ford should have granted Harris her requested accommodation and whether Ford participated in the “interactive process” mandated by the ADA in good faith.
Decisions of the Sixth Circuit Court of Appeals are binding on federal courts in Kentucky, Michigan, Ohio, and Tennessee. Because this case involved an en banc review of a case initially brought by the EEOC, courts in other jurisdiction also will likely look to this decision for guidance.
Practical Pointer
This decision reaffirms the principal that regular attendance remains an essential job function of most jobs, even where the employer might allow limited telecommuting. The decision also highlights the need for employers to look at each telecommuting request individually to determine whether a particular request should be allowed based on such factors as the degree of face to face interaction needed to effectively perform essential job duties, the employee’s prior performance, and the employer’s prior telecommuting practices.
