Regular attendance is an essential function of most jobs. Thus, employers generally do not have to accommodate employees whose disability prevents them from regularly attending their job.
But a recent decision by the United States Court of Appeals for the Sixth Circuit sheds new light on what "attendance" may mean. In Equal Employment Opportunity Commission v. Ford Motor Company (6th Cir., April 22, 2014), the court held that there was a triable issue as to whether an employee's physical presence at the job site was an essential function of the job, in light of the employee's request that she be permitted to work remotely from home.
Jane Harris worked as a resale buyer at Ford Motor Company. She suffered from irritable bowel syndrome, a condition that worsened over time and resulted in frequent absenteeism. Harris requested that she be permitted to telecommute on an as-needed basis as an accommodation for her disability. Ford has a policy that authorizes employees to telecommute up to four days per week, but the policy provides that it is not suitable for all jobs. Harris's supervisors concluded that her job was not suitable for telecommuting and subsequently terminated her employment. Harris sued under the ADA, claiming that Ford failed to accommodate her disability. The district court declined to second-guess Ford's business judgment that telecommuting was inappropriate in Harris's case and granted Ford's motion for summary judgment.
On appeal, the Sixth Circuit reversed, reasoning that attendance does not necessarily require a physical presence at the employer's location:
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 job function for a resale buyer, but whether physical presence at the Ford facilities was truly essential.
The court noted that "[d]etermining whether physical presence is essential to a particular job is a 'highly fact specific' question." Examining the evidence presented, the court concluded that there was a genuine dispute on this issue that precluded summary judgment.
For employers, the Ford Motor Co. case serves as a reminder that there is often no bright-line test for determining what is a reasonable accommodation. While employers have discretion in defining an employee's essential job functions, courts will not necessarily defer to the employer's judgment, especially where it leads to the termination of a disabled employee. And as technology advances, courts may increasingly find that telecommuting is a reasonable accommodation for a disabled employee, despite an employer's opinion to the contrary.