Last year, the Sixth Circuit Court of Appeals triggered alarms among employers throughout the country when it issued its opinion in EEOC v. Ford Motor Company, 752 F.3d 634 (6th Cir. 2014), In that case, the Court held that an employee who suffered from severe irritable bowel syndrome (IBS) was entitled to a trial on her claim that she remained qualified for work as a resale steel buyer despite her inability to physically attend work with regularity. Because the plaintiff had requested an accommodation of being permitted to work from home up to four days per week, and not on set days, the Cour held an issue of fact existed as to whether such a requested accommodation was reasonable, and whether the employer had failed to properly accommodate her disability under the Americans With Disabilities Act given the advances in technology that have made such telecommuting arrangements more common. Employers were alarmed at the prospect of having employees demand, and be entitled to, “work from home” arrangements based on their representation that they could perform their job nearly as well from their home as they could in their office.
The Court granted en banc review of its earlier opinion and, on April 10, 2015, issued an opinion reinstating a more common sense approach to telecommuting based on the needs of the position and the typical requirement that employees actually be present in the workplace in order to work. The Court did not, however, rule that telecommuting always is unavailable as a reasonable accommodation; employers are well advised to consider the Court’s opinion interpreting the accommodation requirement and examining the “interactive process” in which employers facing requests for accommodation must engage.
First, the Court noted that, with few exceptions, an employee who does not come to work cannot perform any of his job functions, essential or otherwise. The Court ruled that the standing rule is supported by the text of the ADA, the EEOC’s regulations, the EEOC’s informal guidance, and, perhaps most importantly, by common sense. “Regular, in-person attendance is an essential function – and a prerequisite to essential functions – of most jobs, especially the interactive one. That’s the same rule that case law from around the country, the statute’s language, its regulations, and the EEOC’s guidance all point toward. And it’s the controlling one here.” Opinion at p. 9.
The Court went on to examine the particular responsibilities of the plaintiff’s job. It was necessary for her to engage in meetings with suppliers and stampers, and had to be available to participate in face-to-face interactions, all of which necessitated regular and predictable attendance. As evidence that such interactions were an essential element of the job, the Court pointed to Ford’s requirement that resale buyers work in the same building as stampers, and that all other resale buyers regularly and predictably attended work on site. In light of that evidence, the proposal of a four day per week telecommuting program was unreasonable, as it removed an essential function of Harris’ job.
Nor did the evidence introduced below create a genuine issue of material fact as to whether routine attendance at work was an essential function of the job. While Harris herself testified that she could perform her job duties from home, her unsupported testimony did not create an genuine issue of material fact – employees are not allowed to determine the essential fucntions of their positions based upon their personal viewpoint and experience. Similarly, the telecommuting schedules of other employees did not establish that attendance was not an essential function of the job. The telecommuting schedules Harris relied on were schedules allowing one or two days of telecommuting on prescheduled days, not four days off without a predetermined schedule. Moreover, the employees with those telecommuting schedules had promised to come in to work if needed on a day that they were otherwise telecommuting. Thus, the employees that Harris was relying upon were not similarly situated to her; they had shorter, well-defined telecommuting schedules that could be interrupted if business required. That is not was Harris was requesting.
Finally, the EEOC’s overarching reliance on the advancement of technology did not save its claim that telecommuting could substitute for an employee’s attendance at work. Though it is undeniable that the world has undergone a massive shift in the availability of videoconferencing and the like, the EEOC had not proven that the advancement of technology had been adopted at this particular workplace in a way that attendance was no longer necessary for this job. Ford had not adopted widespread video conferencing, and the technologies that Harris routinely used – email, telephone, and limited video conferencing – have been available for years during a time when courts were routinely requiring attendance as part of a job’s regular requirements.
The lesson for employers in this opinion is clear. The Court will grant deference to an employer’s judgment as to what are “essential job functions” where the employer’s words, policies, and practices are consistent with that judgment. Where, however, an employer inconsistently applies work rules regarding attendance, or where the employer cannot explain why attendance at work is a necessary component of the job, an employee may be able to demand extended telecommuting as a reasonable accommodation. Consistency and reasonableness remain the key to a rational examination of accommodation under the ADA.