“A protective tool becomes a weapon if used unwisely; and telecommuting should not become a weapon.” So opined the Sixth Circuit in its en banc ruling on Friday, in which it reversed its divided panel decision in Equal Employment Opportunity Commission v. Ford Motor Company, 752 F.3d 634 (6th Cir. 2014), and concluded that telecommuting was not a reasonable accommodation for a disabled worker under the Americans with Disabilities Act (“ADA”).

Last year, a split Sixth Circuit panel voted 2-1 that telecommuting can be a required reasonable accommodation under the ADA and that the employee in question had raised a genuine issue of material facts warranting a jury trial as to whether it was a reasonable accommodation in her case. The panel reversed summary judgment in favor of the employer, Ford, holding that the EEOC provided sufficient evidence that physical presence at the employer’s workplace on most days might not be an essential job function, and that telecommuting could be a reasonable accommodation for Jane Harris, a resale buyer who suffered from severe irritable bowel syndrome. The panel’s decision was significant largely because of its broad statements that developments in workplace technology purportedly made, or in various instances could make, regular physical presence and attendance at work less critical— and thus arguably less of an “essential function” of a employee’s position—than it generally had been in the past. Our original post about the panel decision is available here.

Not surprisingly, the panel’s decision received widespread criticism in the business community, which expressed concern that it would lead to a tidal wave of litigation and risks of jury trials whenever an employer rebuffed an employee’s request to work from home on a regular basis as a purported reasonable accommodation of a disability. Ford petitioned the full Sixth Circuit for en banc review, which granted review and vacated the panel’s decision.

In its en banc review of the district court’s summary judgment decision, the Sixth Circuit, in an 8-5 ruling, declared that although the ADA requires employers to reasonably accommodate disabled employees, “it does not endow all disabled persons with a job—or job schedule—of their choosing.” It found that Harris sought a job schedule of her choosing when she proposed that she work from home on an as-needed basis for up to four days per week. The majority held that, even when drawing reasonable inferences in the EEOC’s favor, there existed no “genuine issue as to any material fact” regarding Harris’ claims that Ford failed to accommodate her or that Ford retaliated against her because she filed an EEOC charge. Thus, it affirmed summary judgment in favor of Ford.

First, the Court held that, with “few exceptions,” regular and predictable on-site job attendance was an essential function of most positions, including in this case Harris’ resale buyer job. In so holding, it highlighted that a long line of precedent, the ADA, the EEOC’s regulations and informal guidance, and even common sense all support this general rule: “Regular, in-person attendance is an essential function—and a prerequisite to essential functions—of most jobs, especially the interactive ones.” The Court found that the resale buyer job was highly interactive, as the record showed it required teamwork, meetings with suppliers and stampers, and on-site availability to participate in face-to-face interactions. Even more, Harris’ frequent absences were shown to hinder her performance, and she also conceded that four of her ten primary duties could not be performed at home.

Second, in light of this essential function that Harris was unable to meet, the Sixth Circuit found that Harris was not a “qualified individual,” and thus Ford did not even have any responsibility to identify reasonable accommodations for her under the ADA. Since the only accommodation that Harris proposed—an “unpredictable,ad hoc telecommuting schedule”—would instead exempt her from an essential function (i.e., regular and predictable attendance), the Court ruled this proposed accommodation was unreasonable. Moreover, past reasonable accommodations (such as Ford’s offers that Harris telecommute on an as-needed basis and performance enhancing plans) did not improve either Harris’ performance or attendance. The Sixth Circuit emphasized that, under the ADA, an employee is entitled to a reasonable accommodation only if she is otherwise “qualified” for the position—in other words, if she was able to perform essential functions of her position with or without a reasonable accommodation. As Harris was unable to regularly attend work on-site, irrespective of reasonable accommodations, the Court determined that she was unqualified for the position under the ADA. In the alternative, the Sixth Circuit noted that Ford’s prior offers of telecommuting opportunities (which were not successful in remedying her performance deficiencies) and other efforts to work with her did in fact meet its reasonable accommodation obligation.

In its opinion, the majority rejected the EEOC’s arguments that Harris’ testimony, other resale buyers’ telecommuting practices, and the advance of technology all created a genuine dispute of fact as to whether regular on-site attendance was essential to Harris’ job position. Notably, in so doing, the en banc majority gave short shrift to the rationale in the prior panel decision that technological advances had expanded the scope of reasonable “workplaces,” thus increasing the need for employers to consider telecommuting as a reasonable accommodation for disabled employees. While agreeing that technological advancements have allowed employees to perform “at least some essential job functions” at home, the majority found such was not true in the case at bar:

“[T]echnology changing in the abstract is not technology changing on this record. . . . [N]o record evidence—none—shows that a great technological shift has made this highly interactive job one that can be effectively performed at home. The proper case to credit advances in technology is one where the record evinces that advancement. There is no such evidence here.”

Lastly, the Court also held that summary judgment was appropriate where no evidence created a genuine dispute of fact over whether Ford retaliated against Harris for making a charge of discrimination with the EEOC. The records reflected (and the EEOC admitted) that Harris had longstanding poor performance and interpersonal issues, as demonstrated, for example, in Harris having been ranked at the bottom 10% of her peer group even before she made her discrimination charge. The Court found that the EEOC failed to present sufficient evidence from which a reasonable jury could find that the real reason for Harris’ discharge was unlawful retaliation, rather than the stated poor performance.

The dissent, by contrast, focused more on the specific facts of Harris’ case. While not opining categorically that telecommuting is appropriate in every case, it determined that the EEOC did present sufficient evidence to dispute whether regular physical presence on-site was an essential function of Harris’ job or telework was a reasonable accommodation, and thus whether Harris was a “qualified individual” under the ADA. It pointed out, in relevant part, that Harris proposed telecommuting “up to four days each week, not four days per week, every week.” Thus, the dissent reasoned that the issue in this case was more narrow: “whether physical presence every day of the week is an essential function of Harris’s job, and whether telework some days each week is a reasonable accommodation” (emphasis added). The dissent noted that the EEOC presented two pieces of evidence contradicting Ford’s claim that Harris’ job required her to be physically present on-site. First, Harris attested in her declaration that, even when in the office, she performed 95% of her job on the phone and by email. Second, Ford permitted other resale buyers to telecommute, typically one to two days per week. The dissent concluded that this evidence suggested effective performance as a resale buyer did not require face-to-face interactions every day of the week. Furthermore, the dissent presented evidence of other genuine disputes of material fact, such as whether Harris was qualified with a reasonable accommodation of telework—a determination that would vary based on the undetermined fact of whether she teleworked per flex-time arrangements (i.e., working after regular business hours or on weekends) or during core business hours only (i.e., when Ford’s offices are open).

The Sixth Circuit’s en banc decision thus is a victory for Ford and employers

in that it rebukes arguments, fed by the earlier panel decision, that telecommuting should be viewed almost as a routine accommodation that is presumptively reasonable and appropriate in a wide range of cases given technological advances. At the same time, however, caution remains warranted. While the Court confirmed the notion that in-office presence is an essential function of most jobs, particularly those that are interactive, the case also illustrates the fact-intensive nature of such determinations and the importance of reviewing an employee’s accommodation requests on a case-by-case basis. Furthermore, the Court repeatedly noted that, in refusing Harris’ request to telecommute “up to” four days per week, Ford had acted consistent with its policies and practices, including with respect to other employees. Additionally, the Court observed that Ford had not made its judgment in the abstract, but rather had attempted to give Harris more limited telecommuting options, which turned out to be unsuccessful. Accordingly, even under the en banc decision, Ford does not give employers license to disregard employee telecommuting requests as a general matter. Rather, employers should continue to carefully consider their own telework policies and practices, and the extent to which granting telecommuting accommodations is reasonable in light of each individual employee’s essential job functions.