4135220672_a71270c850_oLast year, we reported on the Equal Employment Opportunity Commission v. Ford Motor Company case, a U.S. Court of Appeals case from Ohio.  In that case, the Sixth Circuit Court of Appeals reversed a grant of summary judgment to Ford in a disability discrimination lawsuit.  In a 2-1 split decision, the Court held that allowing Jane Harris, a resale steel buyer for Ford who suffered from irritable bowel syndrome, to telecommute from home on an as-needed basis for up to 4 days a week could be a reasonable accommodation.  Relying on technological advances that allow the “workplace” to be anywhere that an employee can perform job duties, on Ford’s allowing other resale buyers to telecommute on a limited basis, and on Harris’ testimony that she could perform her essential job functions from home, the Court rejected Ford’s contention that Harris’s regular in-person attendance was an essential job function.

That decision, however, was subsequently vacated by the Sixth Circuit when it decided to rehear the case en banc (i.e., to have a larger panel of judges entirely rehear the appeal given its importance).  The new decision is in favor of Ford, and substantially limits working from home as a reasonable accommodation.

On April 10, 2015, after the rehearing en banc, the full Sixth Circuit panel held, in another split decision (8-5), that the district court’s initial grant of summary judgment to Ford regarding the reasonable accommodation question was correct.   The Court expressly held that “regular and predictable on-site job attendance [is] an essential function (and a prerequisite to perform other essential functions) of Harris’s resale-buyer job.”   The Sixth Circuit determined that, therefore, it follows that Harris’s proposal that she telecommute for up to 4 days a week was unreasonable as it removed that essential function of her job.

By its holding, the Court affirmed the general rule that regular and predictable on-site work attendance is essential to most jobs, especially interactive jobs (i.e.,  jobs that require interaction with others such as co-workers or clients).   This general rule is consistent with the Americans with Disabilities Act (ADA) and EEOC regulations.  And importantly, as the Court stated, the rule is supported by common sense.  As the Court explained, non-lawyers readily understand that regular on-site attendance is required for most interactive jobs and perhaps is the basic and most fundamental activity of these jobs.

This decision does not mean that telecommuting can never be a reasonable accommodation for a disability.  Nor does the decision require blind deference to the employer’s judgment of what constitutes an essential job function.  Rather, as the Court stated, the decision  “does require granting summary judgment where an employer’s judgment as to essential job functions – evidenced by the employer’s words, policies and practices and taking into account all relevant factors – is ‘job related, uniformly-enforced and consistent with business necessity.’”  The Court found that Ford met that test with respect to its requirement for regular on-site attendance for its resale buyers.

Although the Ford case has now been decided in the employer’s favor, this does not mean that employers should assume telecommuting can be rejected out of hand as a reasonable accommodation for a disability.  On the contrary, whether telecommuting is a reasonable accommodation remains an intensive, fact specific, case-by-case inquiry.  In addition, an Ohio case from the Sixth Circuit like Ford is persuasive authority for California courts but not binding on them.

As we advised after the original Sixth Circuit Ford decision, the important lesson for employers remains that they should not automatically reject an employee’s request to telecommute as a reasonable accommodation.  Instead, during the interactive process, employers should carefully and objectively examine the job duties of the position in question to determine if attendance is truly required for the position.  Factors that should be considered include how interactive the job actually is, available technology, and how employees in similar positions perform their jobs and work from home.