After previously holding last year that telecommuting may be required as a reasonable accommodation, the Sixth Circuit Court of Appeals issued an en banc order vacating that decision. This time, the court held that because regular and predictable on-site attendance was essential to the employee’s job, her request to telecommute as an accommodation was not required by the Americans with Disabilities Act (ADA).
In EEOC v. Ford Motor Co., the employee suffered from irritable bowel syndrome and fecal incontinence that was so bad that she said it could “start pouring out of her at work.” No. 12-2484 (6th Cir., Apr. 10, 2015). Ford allowed her to try telecommuting on a trial basis on three occasions, but determined that she was still unable to maintain consistent job hours and complete her core job functions. Later, the employee requested to work from home up to four days per week. Human Resources met with her to discuss how she would be able to complete her job duties with that arrangement. After determining that the request was unreasonable, Ford proposed alternative accommodations, including moving her closer to the restroom or helping her to look for jobs better suited for telecommuting. The employee turned down both accommodation proposals and filed a charge of discrimination with the EEOC.
The first time that the Sixth Circuit addressed the case it held that there was a genuine issue of fact regarding whether the employee’s request to telecommute was reasonable. The court explained that the employer failed to show that the employee’s constant physical presence at work was essential for her to perform her job duties, particularly in light of recent technological advancements that make telecommuting more feasible.
Reviewing the decision again en banc, the Sixth Circuit vacated its previous order. This time, the court held that the employee’s request to telecommute was not reasonable. The court explained that although the ADA requires reasonable accommodation of disabled employees, “it does not endow all disabled persons with a job—or job schedule—of their choosing.” The court concluded that the employee had a “highly interactive” job and that “regular and predictable on-site attendance” was an essential job requirement. Relying on the well established rule that providing a reasonable accommodation does not require an employer to remove an employee’s essential job functions, the court held that the employee’s request to telecommute was unreasonable and not required by the ADA.
In reaching its decision, the Sixth Circuit suggested that regular attendance is an essential function for “most jobs.” The court wrote that:
That general rule—that regularly attending work on-site is essential to most jobs, especially the interactive ones—aligns with the text of the ADA. Essential functions generally are those that the employer’s “judgment” and “written [job] description” prior to litigation deem essential. See 42 U.S.C. § 12111(8). And in most jobs, especially those involving teamwork and a high level of interaction, the employer will require regular and predictable on-site attendance from all employees (as evidenced by its words, policies, and practices).
The court explained that the “sometimes-forgotten guide” of common sense also supports this conclusion.
Takeaway: The Sixth Circuit’s en banc decision in EEOC v. Ford Motor Co. is good for employers because it reinforces the common sense rule that regular and consistent attendance is an essential function of “most jobs.” This rule will not apply to all jobs, however, so employers should continue to engage in the interactive process when accommodations are requested. In addition, it is possible that the EEOC may seek to appeal the decision to the U.S. Supreme Court, so this may not be the final word in the case.