This time last year (minus 12 days) the 6th Circuit Court of Appeals in EEOC v Ford revived an employee’s ADA claim, holding that telecommuting may be a reasonable accommodation under the ADA (and the ADAAA) and, specifically, that it may have been a reasonable accommodation for the specific employee in that case. You can find that post and the relevant facts of the case, here. Since the decision only came from a three-judge panel, rather than the full appellate panel, Ford asked for leave to reargue in front of a full appellate panel. The court vacated its decision and granted leave for reargument this past fall. The full appellate panel (minus two judges who recused themselves) heard arguments in December, and on Friday the court, in an apparent reversal, granted summary judgment to Ford, effectively dismissing the case, and finding, under the facts of the case that attendance was an essential job function. Wait. What? Does that mean that employers are not required under the ADA to allow their employees to telecommute? I am sure some of you wish it could be that simple–but we know that life is hardly ever that simple. So naturally we have to look a bit more at what’s going here. The EmpLAWyerologist will do exactly that, after the jump, of course…
OK, I won’t go into a long dissertation of the court’s ruling or reasoning. (Click here if you want to read the opinion). The three-judge panel back in April said that there was enough factual dispute over whether Ms. Harris, Ford’s employee, could perform the essential function of her job while telecommuting. If she could, then, physical attendance was not an essential function, and telecommuting could have been a reasonable accommodation of her serious IBS symptoms under the ADA. The full panel ruled eight to five that the a) the facts showed that Ms. Harris was not able to perform the essential functions of her job while telecommuting and b) there was therefore no signficant factual dispute, necessitating a trial. The court found that under these specific circumstances that physical presence is an essential function of Ms. Harris’ job as a resale buyer for Ford.
Without rehashing all twenty pages of the majority opinion, here are some of the key facts upon which it relied in reaching its conclusion:
- Resale buyers meet with suppliers at their site and with Ford employees and stampers at Ford’s site. Ford’s practice aligns with its assertion that these meetings are most effective when done face-to-face.
- Ford documented that Ms. Harris lacked interpersonal skills, delivered work late, failed to properly communicate with suppliers and by 2009 her performance ranked in the bottom 10% of her peers.
- Her poor performance and high absenteeism negatively effected her co-workers, who often had to take on functions she could not perform from home.
- Perhaps most significantly, at least two of Ms. Harris’ supervisors did allow her to telecommute on a trial basis, a few times a week, (even though Ford’s telecommuting policy generally allowed employees to commute one set day each week, if at all) and she was still “unable to establish regular and consistent work hours” and “failed to perform the core objectives of her job”. In fact of the 10 key job functions, she was unable to perform 4 of them from home.
- Ford offered to try to find her a position better suited for telecommuting, and Harris turned down that offer.
How much does this ruling really change anything for employers? Perhaps not much at all. Yes, physical attendance is often an essential function of a job, and yes, employers, as a general rule get to determine the essential functions of a job. The court determined that physical attendance is an essential function of this job in this case. It is also clear that Ford did engage in the interactive process with Ms. Harris, and attempted to find a reasonable accommodation. The court also clearly felt that the specific accommodation Ms. Harris requested, telecommuting up to four days a week was not a reasonable accommodation. This court (and other circuit courts) acknowledged that telecommuting could still be a reasonable accommodation under the ADA under the right circumstances–just not these circumstances, according to the 6th circuit.
So let’s wrap up with some takeaways:
- Consider every request for an accommodation individually and attempt to provide a reasonable accommodation;
- If you are unable to come up with a reasonable accommodation, document what happened and why, particularly why you refused your employee’s specific request;
- Remember, that “reasonable accommodation” under the ADA does not necessarily mean providing the specific accommodation your employee requests;
- Review your policies and procedures regarding requests for accommodations based on conditions that meets the ADA’s expansive definition of “disability”;
- This case is probably not the last you will hear on this issue, and it is only binding on courts within the 6th circuit (Kentucky, Michigan, Ohio, Tennessee). The circuits appear to be split on the issue of whether telecommuting is a reasonable accommodation under the ADA, leaving open the possibility of a telecommuting-ADA case some day being heard by the US Supreme Court.
Stay tuned for The EmpLAWyerologist’s regularly scheduled post on Thursday.
Disclaimer: This post’s contents are for informational purposes only, are not legal advice and do not create an attorney-client relationship. Always consult with competent employment counsel on any issues discussed here.
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