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Apr 13, 2015

By Eric B. Meyer

If you’re in a rush, I’ll hit you with the punchline and save you the trouble of reading a 1,000 plus word blog post:

Telecommuting may be a reasonable accommodation under the Americans with Disabilities Act, except where regular attendance is an essential function of the job.

For those of you with a few minutes to spare, today’s post springs from a case, a saga really, involving the U.S. Equal Employment Opportunity Commission and the Ford Motor Company. And since I have a few good employer takeaways at the end — hey, don’t skip all the way through! — today’s post is worth the time.

Poor performing worker with disability wants to work at home

Ford employed a poor performing worker who had irritable bowel syndrome, a disability under the ADA. This employee, whose job it was to purchase steel and auto parts, wanted to telecommute to her job up to four (4) days per week. Ford, however, determined that regular attendance was an essential part of the employee’s job because she (and others like her) needed to interact constantly with suppliers and co-workers.

Still, Ford did offer the employee a few alternative accommodations (placing her closer to the bathroom, offering her another position more suitable to telecommuting), all of which the employee rejected.

Well, as you can imagine, the employee’s performance and attendance went from bad to worse. And, ultimately, Ford fired her.

Attendance trumps telecommuting as an accommodation

The ADA requires an employer to provide a reasonable accommodation to an employee with a disability if doing so will allow that employee to perform the essential functions of her job. By extension, if an employee with a disability cannot perform the essential functions of the job with or without reasonable accommodation, then he or she is not “qualified.”

For certain, a reasonable accommodation may involve job restructuring; e.g., telecommuting. As noted above and in this opinion from the Cincinnati-based Sixth U.S. Circuit Court of Appeal (EEOC  v. Ford Motor Company), Ford had offered to transfer the employee into another position, more conducive to telecommuting (and, ostensibly, where regular job attendance was not an essential function).

But, the appellate court was clear: “An employee who does not come to work cannot perform any of his job functions, essential or otherwise.”

Indeed, the Sixth Circuit noted that regular attendance jibes with the EEOC’s position on telework as an accommodation:

The EEOC’s informal guidance on the matter cuts in the same direction. An employer may refuse a telecommuting request when, among other things, the job requires “face-to-face interaction and coordination of work with other employees,” “in-person interaction with outside colleagues, clients, or customers,” and “immediate access to documents or other information located only in the workplace.”

A “common sense” approach yields the same result

Yep, the Sixth Circuit went all logical (i.e., non-lawyer) on us too:

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. But equipped with a 1400-or-so page record, standards of review, burdens of proof, and a seven-factor balancing test, the answer may seem more difficult. Better to follow the commonsense notion that non-judges (and, to be fair to judges, our sister circuits) hold: Regular, in-person attendance is an essential function — and a prerequisite to essential functions —  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.

That rule has straightforward application here: Regular and predictable on-site attendance was essential for Harris’s position, and Harris’s repeated absences made her unable to perform the essential functions of a resale buyer.”

For these reasons, the Sixth Circuit concluded that, in this particular case, regular attendance was an essential function of the job. So, the employee was not a “qualified” person with a disability.

Four employer takeaways

  1. Don’t overrate technology. In a prior post about this case, I predicted that a “common sense view of how technology impacts the workplace will soon become the rule, rather than the exception.” The Sixth Circuit too acknowledged, in the abstract, the EEOC’s position that “technology has advanced” enough for employees to perform “at least some essential job functions” at home. But, just because technology may facilitate job performance, it doesn’t necessarily moot certain essential job functions. For example, if as here, face-to-face interaction is essential, a computer won’t be able to replicate that. Thus, telecommuting — even with FaceTime — would not be a reasonable accommodation.
  2. Where regular attendance of a particular job is an essential function, make sure the job description reflects that. Then, make sure employees in that position understand that too. Provide them a copy of the job description early on — maybe even during the interview process.
  3. Managers too must understand the essential functions of the position. It does not good to have a job description that managers ignore. For example, if Ford managers had allowed other similarly-situated, but non-disabled, employees to telecommute up to four days per week, then this case gets decided much differently. Additionally, managers should not be conditioned to ignore or reject employee accommodation requests. Rather, train managers on how to receive and process them. Presumably, this means getting HR involved.
  4. Ultimately, there is no one-size-fits-all formula to address an accommodation request. While employers do not need to remove essential functions from a job to accommodate an employee, the employer must engage in a good faith interactive dialogue with the employee. Generally, this begins with an employee requesting an accommodation. To be clear, the general process an employer follows should be uniform. However, each specific situation; i.e., each accommodation request, stands on its own in terms of the disability, the request made, and the accommodation option(s) available.

More accommodation cases popping up

More and more, I’m seeing ADA accommodation cases spring up in my practice. To mitigate against the risk of litigation, consider getting a lawyer involved in particularly sticky accommodation requests.

Even before that, an ADA audit is a smart, proactive approach that could save your company some litigation headaches.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

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