Employment & Labor Insider

Inquiring minds want to know!

In the context of a lawsuit brought under the Americans with Disabilities Act, a recent court decision says that "regular attendance" is an essential function of the job. But what is "regular attendance"?

Which made me think of this:

(I promise - this is neither a pro- nor an anti-Hilary Clinton post, but I couldn't resist the tie-in during this week of her big announcement.)

Back on topic: I was tickled to death to see that Ford Motor Company was vindicated last Friday in the telecommuting/accommodation lawsuit brought by the Equal Employment Opportunity Commission. I've posted about the case, brought under the Americans with Disabilities Act, here and here, and on Friday, the full U.S. Court of Appeals for the Sixth Circuit affirmed dismissal of the lawsuit.

Ten judges joined the ruling in favor of Ford, and five judges agreed with the EEOC that the case should have gone to a jury.

Very quick recap: The employee had a severe case of irritable bowel syndrome - including unpredictable episodes of bowel incontinence. Ford engaged in the interactive process with her and tried various solutions, none of which worked. In my opinion, the employee was less than "accommodating" with Ford. Although she was in a job that required "face time," and although some of her duties could not be satisfactorily performed remotely, she insisted that she should be allowed to telecommute four days a week. Because of her medical condition, presumably, she could not agree to any kind of predictable schedule in which the company could count on having here there in person.

She was eventually terminated, and the EEOC sued Ford under the ADA. Ford won summary judgment from a federal district court in Michigan, but the EEOC appealed and won before a three-judge panel of the Sixth Circuit. Ford then asked to have the appeal heard by all 15 judges on the Sixth Circuit, which vacated the panel decision and then ruled Friday in Ford's favor.

(The Sixth Circuit hears appeals from federal courts in Kentucky, Michigan, Ohio, and Tennessee.)

There are some real pearls of ADA wisdom from Friday's decision, and my colleague Zan Blue shared his insights earlier this week about the court's affirmation of the longstanding rule that regular attendance is an "essential function" of virtually every job.

But what does "regular attendance" mean? Does the court's decision mean that an employer never has to consider telecommuting as a reasonable accommodation?

Of course not. Although attendance is an essential function of any job, "attendance" can mean different things, depending on the nature of the job. A computer programmer may very well be able to perform all -- or almost all -- of her job duties remotely. Many "call center" [sic] employees work exclusively from home. Same with bloggers -- at least, if blogging is all they do.

Jobs that require a computer, an internet connection, and a phone are generally pretty easy to perform from home. I see the Sixth Circuit as saying, If you have a job like this and need to do it from home because of a disability and can do it from home, then great. You can meet your employer's "regular attendance" requirement without ever showing up at an office. (Well, hardly ever.) Therefore, even if you are normally expected to do your computer/phone work at an office, your employer may need to consider letting you work from home as a reasonable accommodation.

On the other hand, many jobs really do require you to "be somewhere," much if not all of the time. Maybe you operate a big, noisy, greasy machine that would upset your two show-quality Cavalier King Charles spaniels and, in any event, won't fit inside the hallway that you converted into a computer nook. Maybe you wait on tables at a restaurant. Maybe you're a sales rep who is much more effective when you make personal, face-to-face contact with potential and existing accounts. Maybe you're a lawyer who has to go to court. Maybe you have a classroom of 31 unruly kindergarteners and you do not want them in your house and getting their sticky little handprints all over that brand-new curio cabinet with the glass doors in your living room. You get the idea.

If you have this latter type of job, telecommuting may not be a reasonable accommodation even if you do have an actual, certifiable disability. Because, how would you get your work done?

Another thing I liked about the Sixth Circuit decision, which Zan also noted, is that the Court said employees don't get to decide what the "essential functions" of their positions are -- that is the employer's call. But, at the same time, an employer can't refuse the ADA accommodation of telecommuting "just because it says so." In other words, it can't arbitrarily refuse an effective reasonable accommodation. The courts would still look at things like the nature of the job, the ability of the employer to monitor performance if the employee works remotely, and what exceptions the employer has made to its "on-site" requirement in other instances.

In short, Ford got a well-deserved win, but the EEOC is still right that employers should consider telecommuting or remote work as one possible reasonable accommodation for employees with disabilities. And an employer who refuses to allow it should be ready to justify that decision.

. . . AND ALSO OF INTEREST . . . 

*A lot of good law bloggers have weighed in on the EEOC v. Ford decision. In addition to Zan Blue's take, I recommend that you read Eric Meyer, Jon Hyman (who, like Zan, actually practices law in the Sixth Circuit), and Bill Goren. Also, some commenters quoted in a Law360 article published Thursday morning agreed that the Ford decision does not mean the end of telecommuting as a reasonable accommodation. (Just so you all know, I wrote this blog post before I saw the Law360 article - I hate it when that happens!)

*And on a completely different topic, readers who handle immigration issues will be interested in Will Krasnow's discussion of a recent reversal in position by the U.S. Citizenship and Immigration Services on H-1B petitions.