Telecommuting Is Not a Required Accommodation for Employees Unable To Perform Essential Job Functions

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By: Karen L. Piper

 

The full Sixth Circuit Court of Appeals ruled that Ford Motor Company was not required to allow an employee, whose job was highly interactive, to telecommute up to four days a week, on an as-needed basis. EEOC v Ford Motor Co., Case No. 12-2484 (April 10, 2015).

Jane Harris worked as a resale buyer for Ford for six-plus years.  Her job was to act as an intermediary between steel and parts suppliers.  The job was “highly interactive.”  Some interaction could occur by email or telephone, but many interactions required “good old-fashioned interpersonal skills.”

Harris did well at first, winning awards and recognition for diligence.  By her 4th year on the job, Harris was rated in the bottom 22% of her peer group and, in her 5th and 6th years, she was rated in the bottom 10%.  She was absent 30% of the time in 2008 and more than 50% in 2009.  Her overall performance rating was “subpar.”

Harris’s absences were caused by her irritable bowel syndrome (IBS).  Harris’s IBS gave her “uncontrollable diarrhea and fecal incontinence.”  She did not always make it to the restroom and experienced “pants accidents.”

Two different supervisors allowed Harris to telecommute (work at home), as needed, three different times, for one to two months each time.  Both supervisors also tried specialized work plans to improve Harris’s attendance.  Despite these programs, Harris still was unable to establish “regular and consistent work hours.”

In April 2009, Harris requested to be allowed to work at home up to four days a week on an as-needed basis.  Her supervisor and two HR representatives met with Harris to discuss the request.  In the meeting, Harris admitted that she would be unable to perform four out of 10 or 11 essential job functions at home.  Ford denied the request to telecommute, but offered to move Harris closer to a restroom at work or to look for another job for Harris – one better suited to telecommuting.  Harris declined both offers.  Four months later, Harris missed a deadline and Ford terminated her employment for subpar job performance and high absences.  She filed an EEOC charge and the EEOC filed suit on Harris’s behalf, claiming disability discrimination and retaliation.

The Americans with Disabilities Act (ADA) requires employers to provide reasonable accommodation to qualified individuals with a disability.  “Qualified” means the employee is able to perform the essential functions of the job, with or without reasonable accommodation.

The district court dismissed the case because Harris was not qualified.  She admittedly was unable to perform several essential job functions, even with a telecommuting accommodation.  A three-judge panel of the Sixth Circuit Court of Appeals reversed, finding there were fact questions as to whether Harris was able to perform her job.

The full Sixth Circuit Court of Appeals, sitting en banc, agreed to review the case.  On April 10, 2015, in an 8:5 decision, it agreed with the district court.  Harris was not a qualified individual with a disability entitled to accommodation because she was unable to perform the essential functions of her job, even with reasonable accommodation.

The court clarified that reasonable accommodation does not require removing an essential job function.  “A reasonable accommodation may include job restructuring and part-time or modified work schedules. But it does not include removing an essential function from the position, for that is per se unreasonable.” (Internal quotes and citations deleted.)  Since Harris admittedly could not perform several essential job functions, she was not a qualified individual with a disability and Ford did not violate the ADA by denying her request to telecommute.

The court observed the “general rule that, with few exceptions, ‘an employee who does not come to work cannot perform any of his job functions, essential or otherwise.’” It also noted that the “general rule – that regularly attending work on-site is essential to most jobs, especially the interactive ones – aligns with the text of the ADA.”

The court acknowledged that, “in the abstract,” “technology” has advanced enough for many employees to perform at least some essential functions at home.  In this case, however, the EEOC presented no evidence that technology would allow this employee to perform her highly interactive job effectively at home.

In light of this opinion, employers should review job descriptions to be sure they expressly state, where applicable, that regular and predictable on-site attendance is an essential job function.  For assistance, contact an experienced employment attorney, such as the author.

This article was written by Karen L. Piper, who is Secretary of the Board of Detroit SHRM, a member of the Legal Affairs Committee, and a Member of the law firm of Bodman PLC, located in its Troy MI office.  She can be reached at (248) 743-6025 or kpiper@bodmanlaw.com.

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. April 2015.