There’s No Place Like Home (Unless Attendance Is An Essential Job Function)

A federal appellate court has rejected the EEOC’s claim that Ford unlawfully denied an employee’s request for a reasonable accommodation after she asked to work from home due to her irritable bowel syndrome.

The U.S. Court of Appeals for the Sixth Circuit in EEOC v. Ford Motor Co. concluded that if an employee’s job is interactive and requires regular and predictable on-site attendance, an employer may not have to allow working from home as a reasonable accommodation under the Americans with Disabilities Act (“ADA”). The court wrote that “with few exceptions, an employee who does not come to work cannot perform any of his job functions, essential or otherwise.”

This case revolved around Jane Harris, a former Ford resale buyer, an interactive position that required teamwork. (Harris later admitted that she could not do four of her ten main job duties at home.) Harris’s IBS caused uncontrollable diarrhea and fecal incontinence, however, so she requested leave to work from home up to four days per week. After meeting with Harris twice to review accommodation options, Ford declined her telecommuting request as unreasonable because the excessive absences would prevent Harris from effectively performing her job responsibilities. Ford did offer Harris two alternative accommodations, which she rejected. Harris then filed a discrimination charge with the EEOC. Four months later, Ford discharged Harris for poor performance. The EEOC subsequently sued Ford, alleging disability discrimination, failure to reasonably accommodate Harris’s disability, and retaliatory discharge.

The Sixth Circuit sided with Ford, holding that while a reasonable accommodation may include job restructuring or a modified work schedule, removing an essential function from the position was per se unreasonable. The court concluded that regular, predictable in-person attendance “is an essential function … of most jobs, especially the interactive ones.” The court found that Harris’s proposed unpredictable ad hoc telecommuting schedule was not reasonable because it removed at least one essential function from her “highly interactive” job.

The Sixth Circuit’s decision is binding in federal courts in Kentucky, Michigan, Ohio, and Tennessee. Until other courts look to this recent case for guidance, employers may need to keep in mind that the EEOC takes a different enforcement position. The EEOC noted in its 2002 Guidance on Reasonable Accommodation and Undue Hardship under the ADA, “certain courts have characterized attendance as an ‘essential function.’ … Attendance, however, is not an essential function as defined by the ADA because it is not one of ‘the fundamental job duties.’” Employers should carefully review any reasonable accommodation requests for telecommuting arrangements to determine whether the request should be granted based on factors such as the employee’s job duties and the extent to which face-to-face communication or on-site attendance is required, his or her past performance, existing telecommuting policies or practices, and any potential alternative accommodations.

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