We previously reported on a welcome federal court decision holding that regular attendance is an essential function under the Americans with Disabilities Act ("ADA") and that an employer has no obligation to grant a request for a flexible work schedule. Recently, the Sixth Circuit took a different tack and held that an employer may have an obligation to offer telecommuting as a reasonable accommodation for a disabled employee.
The case, EEOC v. Ford Motor Co., involved the employment of Jane Harris—an employee who worked for Ford as resale buyer. The position involved individual tasks such as computer-based data entry and periodic site visits. But the most important function of the resale buyer was to strategize with steel suppliers and other members of the resale team when supply problems arose in order to insure there was no delay in the production cycle. In Ford’s judgment, such group interactions were most effectively handled face-to-face, rather than through email or teleconferencing.
Unfortunately, Harris suffered from irritable bowel syndrome, which resulted in frequent absenteeism. As her condition worsened, Harris requested that she be permitted to telecommute on an as-needed basis as an accommodation for her disability. Ford denied her request after concluding that Plaintiff’s position was not suitable to telecommuting given the team-based nature of the department and the emphasis on group problem-solving. Ford suggested several alternative accommodations, including transfer to another position more suitable for remote working. But Harris rejected each of these options and filed a charge of discrimination with the EEOC. Thereafter, the EEOC initiated a lawsuit on Harris’s behalf, alleging that Ford violated the ADA by failing to accommodate Harris’s disability.
In light of precedent establishing that it was not for the court to second guess an employer’s business judgment behind personnel decisions, the district court found that Harris’s request to telecommute was not a reasonable accommodation for her position. The Sixth Circuit disagreed, finding a genuine dispute on the issue of whether physical presence was an essential function of the resale buyer position.
The court recognized that regular physical presence in the workplace is an essential function of most jobs, but said such a conclusion was not automatic. The court pointed to advances in technology and the growing reliance on remote work arrangements in support of its holding that “attendance at the workplace can no longer be assumed to mean attendance at the employer's physical location.” Similarly, the court was “not persuaded that positions that require a great deal of teamwork are inherently unsuitable to telecommuting arrangements.”
In light of the Ford decision, employers can expect to receive more employee requests to work remotely. However, as the decision highlights, it is no longer safe for employers to reject these requests outright. Employers can no longer assume that on-site attendance is an essential function or instinctively point to job descriptions articulating that attendance is critical. Rather, and as with most ADA issues, the question is a highly fact specific one. Employers must undertake an individualized inquiry into whether physical presence is critical and, in doing so, must consider the specific duties of the job, the realities of the workplace, and technological resources available.
The Sixth Circuit has jurisdiction over Michigan, Kentucky, Ohio, and Tennessee, but the court’s decision is simply the most recent in a long line of cases challenging attendance as an essential function. This trend is sure to continue, and we will keep you apprised of advancements in this area.