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Is Attendance at Work an Essential Job Function Any More?

Added by Hawley Troxell in Articles & Publications, Employment Law on June 4, 2014

Regular attendance at the workplace is an essential function of many jobs. For such jobs, if an employee with a disability is unable to regularly show up at work, the employee is not qualified for the job under the Americans with Disabilities Act (ADA). This also means that, for such jobs, telecommuting generally is not a reasonable accommodation under the ADA for an employee with a disability—because the job requires that the employee regularly be at the employer’s facility.

However, based on a recent case, employers may need to give greater consideration to allowing telecommuting as an accommodation to an employee with disability. In April 2014, the Sixth Circuit concluded that physical presence at the employer’s facilities might not be an essential function for certain jobs and that, for such jobs, telecommuting might be a reasonable accommodation for an employee with a disability. (The Sixth Circuit covers Michigan, Ohio, Kentucky, and Tennessee.) In EEOC v. Ford Motor Company, an employee had a condition that made it difficult for her to regularly be at work. Because of her condition, the employee requested permission to work from home “as needed” up to four days a week. Ford rejected her request because it felt that she needed to be at work in order to interact with her co-workers and others to do her job. Eventually, the employee was terminated for poor performance.

The EEOC filed suit on behalf of the employee, alleging that regular attendance was not an essential function of the job and that Ford had failed to provide the employee a reasonable accommodation for her disability, namely allowing her to work from home as needed. Ford’s defense was that the job could not be performed effectively from home. Ford argued that “the essence” of the employee’s job was “group problem-solving,” which required that the employee “be available to interact with other members of” her team when problems arose. Ford also argued that it had “made the business judgment that such meetings were most effectively handled face-to-face, and that email or teleconferencing was an insufficient substitute for in-person team problem-solving.” The district court agreed and granted summary judgment in favor of Ford.

However, on appeal, the Sixth Circuit disagreed. The Sixth Circuit recognized that for “many positions, regular attendance at the work place is undoubtedly essential.” But the Sixth Court went on to hold that, in light of today’s technology, an employee may be able to “attend” work from somewhere other than the employer’s workplace:

“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 [of the job], but whether physical presence at the Ford facilities was truly essential.”

The Sixth Circuit similarly held that, with current technology, the jobs in which telecommuting may be a reasonable accommodation for an employee with a disability were no longer rare:

“[M]any jobs continue to require physical presence [at the employer’s facility] because the employee must interact directly with people or objects at the worksite. We are merely recognizing that, given the state of modern technology, it is no longer the case that jobs suitable for telecommuting are ‘extraordinary’ or ‘unusual.’ . . . [C]ommunications technology has advanced to the point that it is no longer an ‘unusual case where an employee can effectively perform all work-related duties from home.’”

With this reasoning, and the evidence that the employee could do her job effectively from home, the Sixth Circuit concluded that there was a genuine issue that should have been sent to a jury and that the district court should not have granted summary judgment for Ford.

It remains to be seen whether this case will be followed by other courts. Nevertheless, based on this case, employers should not automatically conclude that an employee’s physical presence at the employer’s workplace is an essential function of a job or that telecommuting cannot be a reasonable accommodation for an employee with a disability. For certain jobs, technological advances may have expanded the definition of the “workplace” to include any place where the employee can perform his or her job duties. In short, employers should carefully evaluate an employee’s request to telecommute or work off-site as an accommodation for the employee’s disability.

If you have questions about these or other ADA-related issues, please contact a member of our employment group or call 208.344.6000.