A Dose of Common Sense: Sixth Circuit Says Regular Attendance is an Essential Function of Most Jobs
In a long-awaited decision addressing whether telecommuting is a reasonable accommodation, the Sixth Circuit Court of Appeals dispensed a dose of common sense ruling that Ford Motor Co. did not violate the Americans with Disabilities Act when it denied an employee’s request to telecommute on an unscheduled basis as a reasonable accommodation. The case is EEOC v.Ford [pdf].
The EEOC alleged that Ford violated the ADA by failing to accommodate buyer Jane Harris, who suffered from irritable bowel syndrome, with a schedule that allowed her to telecommute up to four days a week on an as needed basis. Ford contended that the accommodation was not reasonable because regular, in-person attendance at the worksite was an essential function of Harris's job.
Initially, the federal district court dismissed the case finding that Harris was not “qualified” for her position because her disability prevented her from meeting Ford’s regular attendance standards. Regarding Ford’s decision not to accommodate Harris with a telecommuting arrangement, the court noted that “in general, courts have found that working at home is rarely a reasonable accommodation.”
On appeal, however, a three-judge panel of the Sixth Circuit reinstated the case finding that telecommuting could be a reasonable accommodation because “[a]dvancing technology has diminished the necessity of in-person contact to facilitate group conversations.” Ford then asked the entire nine-judge panel of the Sixth Circuit to re-consider the case, which it agreed to do.
In a decision that relieved many employers, the Sixth Circuit’s decision last Friday mixed sound legal analysis with practical common sense business considerations. The court found that Ford was not required to provide as needed telecommuting as a reasonable accommodation because Harris was not qualified to perform the essential functions of her job – a prerequisite to a reasonable accommodation under the ADA. The court cited to the record, which showed that Ford had attempted to work with Harris on a flexible schedule, but that she could not regularly and predictably attend the workplace – an essential function, and a prerequisite to other essential functions. The court noted the general proposition that, “with few exceptions, ‘an employee who does not come to work cannot perform any of his job functions, essential or otherwise.’” The court further noted, “[m]ost jobs require the kind of teamwork, personal interaction, and supervision that simply cannot be had in a home office situation.”
The court went further and acknowledged something that employers often wonder about – how does this make sense? The court recognized that approving unscheduled telecommuting as a “reasonable” accommodation “would cause practical harm to private employers” and would, in fact, end up hurting the overall practice of telecommuting. The court noted
"A sometimes-forgotten guide likewise supports the general rule: common sense. Non-lawyers would readily understand that regular on-site attendance is required for interactive jobs. Perhaps they would view it as “the basic, most fundamental” “activity” of their job…. Regular, in-person attendance is an essential function—and a prerequisite to essential functions—of most jobs, especially the interactive ones. 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."
This case provides employers with plenty of legal, as well as, common sense lessons about the interactive process and accommodating employees.
- Job descriptions and employer practices matter. The court noted that under the ADA employers have the responsibility of establishing the essential job functions. Ford was able to establish that on-site presence at work was an essential function based on job descriptions, policies, and actual work experiences of employees performing similar functions. Review job descriptions and policies to ensure that they accurately and fully capture the essential job functions like teamwork and personal interaction.
- Don’t reject accommodations out of hand. Ford did try to accommodate Harris with a limited telecommuting schedule. However, she failed to perform her job functions. Ford’s earlier efforts to work with Harris and her inability to perform her job in those circumstances were significant in the court’s decision that she was not a qualified individual.
- Consider advances in technology appropriately. The court was clear that on the facts of this case, telecommuting was not a reasonable accommodation. However, the decision does not give employers free reign to reject telecommuting or the use of other technological advances in identifying appropriate reasonable accommodations. The court left the door open for use of technology in evaluating reasonable accommodations based on the nature of the essential functions of the job.
The bottom-line is that with or without a reasonable accommodation, an employee must be able to perform the essential functions of the job. The EEOC is considering whether to appeal this decision to the Supreme Court, so there may still be another chapter in this story.