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A Better Partnership


Jun 2014
June 09, 2014

Workplace Attendance Doesn’t Require a Physical Presence, Court Rules

Since the Americans with Disabilities Act (ADA) was amended several years ago, we have advised employers to focus on evaluating whether there are ways to make reasonable accommodations where an employee is having trouble doing his or her job due to a disability. In April, the Sixth Circuit Court of Appeals relied in large part on advances in technology to conclude in EEOC v. Ford Motor Company that the menu of possible accommodations for some jobs should now include allowing the employees to work from home. 

The ruling was the result of a case involving a resale steel buyer at Ford named Jane Harris. Resale steel buyers are responsible for ensuring there is no gap or disruption of steel supply to Ford’s suppliers. Critical to this role is group problem solving, which requires resale buyers to be available to interact with other team members, suppliers, and others when problems arise. Ford required that such interactions be handled in-person, rather than via phone or e-mail. 

Harris suffered from Irritable Bowel Syndrome throughout her employment with Ford, and she took leave under the Family and Medical Leave Act for the condition. When she could not finish her work during normal business hours, she would work from home at nights and on the weekends. Ford found Harris’ work schedule to be problematic because she often made mistakes, and her co-workers were not always available at night and on the weekends. 

Harris eventually made a formal request to Ford that she be allowed to telecommute as needed as an accommodation for her disability. Ford had a formal telecommuting policy, which allowed employees to work remotely up to four days per week, and several of Harris’ co-workers telecommuted one day per week. Ford denied Harris’s request, but did offer other potential accommodations for her condition – including relocating her work station and reassignment to a job better suited to a telecommuting arrangement.

Harris rejected Ford’s proposed alternatives and instead filed a charge of discrimination with the Equal Employment Opportunity Commission.  After several months of coaching/counseling, Ford terminated Harris’s employment. The EEOC sued on her behalf, alleging failure to accommodate under the ADA and retaliation.

Because of her excessive time away from the office, the lower court concluded that Harris was not qualified to perform her job and dismissed the EEOC’s claims.  The lower court refused to second guess Ford’s business judgment as to the essential functions of the job – particularly attendance at the workplace. 

On appeal, however, the Sixth Circuit reversed the lower court in a 2-1 opinion and reinstated the EEOC’s claims. The court based its decision largely on the fact that technology has made it much easier for employees to work from somewhere other than their employer’s physical facility. Its ruling said:

“When we first developed the principle that attendance is an essential requirement of most jobs, technology was such that the workplace and an employer’s brick and mortar location were synonymous. However, as technology has advanced in the intervening decades, and an ever-greater number of employers and employees utilize remote work arrangements, attendance at the workplace can no longer be assumed to mean attendance at the employer’s physical location. Instead, the law must respond to the advance of technology in the employment context as it has in other areas of modern life, and recognize that the “workplace” is anywhere that an employee can perform her job duties. Thus, the vital question in this case is not whether ‘attendance’ was an essential function for a resale buyer, but whether physical presence at the Ford facilities was truly essential.”

Notwithstanding Ford’s belief that physical presence in the workplace and face-to-face interaction with customers and co-workers was critical to the job, and testimony of Harris’ co-workers supporting the company’s position, the court concluded that the EEOC (and Harris) had offered enough evidence to the contrary and a trial should be held to resolve the issue. In particular, Harris offered evidence that even when she was physically present in her office most of her communications were via telephone. Also relevant was the fact that Ford allowed other resale buyers to telecommute. 

The court was careful to distinguish telecommuting from a flex-time or flexible schedule arrangement, where an employee may request to work different hours from one day to the next when necessary, and emphasized that an employee’s availability during “core business hours” was still important. However, in the court’s eyes, availability (to work) was different than physical presence (at the workplace). 

Finally, the court attempted to qualify its holding by stating that whether telecommuting may be a viable accommodation will depend on the specific job, and that not all jobs will lend themselves to that type of arrangement.

The Ford decision underscores the importance of carefully exploring accommodation alternatives for disabled employees based on the specifics of the job in question. Not that Ford did so, but employers who adopt blanket rules when it comes to when or where employees perform their job duties may be at risk of violating the ADA’s obligation to make reasonable accommodations.

Although the Sixth Circuit went to some effort to distinguish telecommuting from flexible work schedules, and to emphasize that telecommuting or work-from-home arrangements may not be appropriate for most jobs, its decision in the Ford case certainly serves as a reminder that the ADA accommodation process is both critically important and potentially complicated.

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