Sixth Circuit: Telecommuting does not trump physical attendance requirement
April 20, 2015
By Anthony Kaylin, courtesy of SBAM Approved Partner ASE
On Friday April 10th, the 6th Circuit of Appeals, en banc (i.e., the full court), handed down an important decision in the EEOC v. Ford Motor Company, No. 12-2484 (6th Circuit Court of Appeals, April 10, 2015). The essence of the decision is that when an essential function of the job requires the employee to be at work with regular attendance, telecommuting is not a reasonable accommodation.
The facts are as follows: Jane Harris worked for Ford Motor Company as a resale buyer. She suffered from Irritable Bowel Syndrome (IBS). This condition resulted in discomfort when bouts would become severe and compelled her to stay home to avoid disrupting the workplace or suffering embarrassment about her symptoms. There was no question that IBS was a disability under the Americans With Disabilities Act.
Ford participated in an interactive process to find a reasonable accommodation for Harris. Telecommuting with flex time was tried three times, but each time the accommodation profoundly affected Ms. Harris’s performance at work. Other accommodations were suggested and discussed, including offering her another job that allowed for telecommuting. Harris outright rejected these accommodations. She wanted to work at her current job but by telecommuting. Ford then denied her continued request to work from home on an as-needed basis up to four days per week, deeming regular and predictable on-site attendance essential to Harris’s highly interactive job. Ford had demonstrated that, at most, a resale buyer could telecommute one day a week.
Harris was not arbitrarily terminated. Harris’ job performance while telecommuting was lacking. She had placed in the bottom 22% of her peer group in her fourth year on the job (2007) and in the bottom 10% in 2008. By her last year (2009), Harris was not performing the basic functions of her position. Ford said she lacked interpersonal skills, delivered work late, was not concerned with quality, and failed to properly communicate with suppliers. In 2008, she missed an average of 1.5 work days per week; in 2009, she was absent more than she was present.
After her termination, Harris filed a charge with the EEOC. EEOC could not mediate a solution, so it filed a lawsuit in 2011. At trial, Ford won on Summary Judgement. The court agreed with Ford that being physically at work was an essential function of the job, concluding that Harris was not qualified because her excessive absences prevented her from performing the essential functions of a resale buyer. The court then stated that working from home up to four days per week was not a reasonable accommodation under the ADA in these circumstances, and agreed the Harris was terminated for performance reasons (absenteeism).
On appeal the first time to a three judge panel of the 6th Circuit Court of Appeals (standard practice for most appeals), the panel overturned the trial court’s decision. The panel discounted Ford’s arguments that a telecommuting arrangement is generally not a reasonable accommodation for resale buyers because they must interact on a regular basis with other team members and access information that is unavailable during non-core business hours. After reviewing the nature and cost of the accommodation, the financial and personnel resources of the affected facility and the company as a whole, and the structure and functions of the employer’s workforce, the panel felt that Ford’s argument failed. The panel bought the EEOC’s argument that technology changed the landscape of work and “actual” attendance is not necessary in today’s work environment. Harris had provided proof that even when she was physically present at Ford facilities, the vast majority of communications and interactions with both the internal and external stakeholders were done via conference call.
Ford appealed the decision to the full 6th Circuit Court of Appeals. The court accepted the appeal, and overturned the original panel’s decision by 8-5. To sum up, the full 6th Circuit stated the EEOC failed to prove that Harris was a “qualified individual,” meaning she could perform the essential functions of a resale buyer with a reasonable accommodation. Harris could not regularly and predictably attend the workplace—an essential function of the job and a prerequisite to other essential functions—even with the past reasonable accommodations of telecommuting trials and specialized plans to improve her attendance. She needed to be physically at work. Harris’s proposed unpredictable, ad-hoc telecommuting schedule was not reasonable because it would have removed at least one essential function from her job: being at work. The court also found that technology has not changed sufficiently to make regular in-person attendance marginal for this job. The court concluded that Harris was unqualified as a matter of law, and reinstated the dismissal of the lawsuit.
The takeaway for HR is twofold. First, many courts have held that the general rule of an essential function of a job—that regularly attending work on-site is essential to most jobs, especially the interactive ones—aligns with the text of the ADA. However, proof that regular “face-time” is important still needs to be sufficient. Second, an employee who has a condition that falls under the ADA can be terminated for attendance issues. In this case, Ford actively participated in an interactive attempt to find a reasonable accommodation. However, no reasonable accommodation could be found that would not positively impact the essential function of attendance at work. Therefore Harris was not qualified under the ADA with or without a reasonable accommodation and had no protections under the law.
This case will likely be appealed to the Supreme Court, so it may not be concluded. ASE will follow the case and report any new developments as they occur.