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Labor and Employment Law

Upon Further Review: Sixth Circuit Denies Telecommuting as Reasonable Accommodation

 by Andrew J. Barber 

We have written previously on this blog about the decision of a panel of the 6th Circuit Court of Appeals (which covers Ohio, among other jurisdictions), which determined last year that an employee with irritable bowel syndrome who worked for Ford Motor Company should have been permitted to work from home as a reasonable accommodation to her condition.  Not satisfied with the decision, Ford pleaded for a re-hearing by the entire 6th Circuit.  Recently, after the 6th Circuit granted that request, the Court reversed course and determined that doing your job at the workplace can be an essential job function. 

As a recap, you’ll remember that the EEOC originally brought claims for failure to accommodate and retaliation under the ADA on behalf of Jane Harris, a steel resale buyer for Ford Motor Company.  Harris claimed that her condition gave her uncontrollable diarrhea and fecal incontinence, and requested that she be allowed to telecommute up to four days a week without any type of schedule accompanying her telecommuting. Ford denied this request and offered to move her closer to the bathroom.  Harris rejected this offer, provided no other suggestions, and subsequently sought the EEOC’s help.

After the District Court granted summary judgment to Ford, the EEOC appealed.  Ford argued that her position was a highly interactive position which required in-person meetings with steel suppliers and steel stampers.  While Ford permitted people in this position to telecommute once per week on a scheduled day (and be willing to come into the office if necessary on that day), Harris requested that she be allowed to telecommute four days a week and would not commit to a schedule nor agree to be available to come into the office on the days she telecommutes. Ford also had a policy of not allowing individuals who perform poorly and struggle with time management to telecommute and argued that Harris was in this category.

When it first heard the appeal, the 6th Circuit agreed with the EEOC and ruled in favor of Harris, as we previously reported.  However, this time around, when the full 6thCircuit heard the case, it affirmed the District Court’s grant of summary judgment.  The Court concluded Harris was not a qualified individual as a matter of law (therefore not triggering the duty of reasonable accommodation) and determined that Ford terminated Harris for a legitimate nondiscriminatory reason (her performance).  Importantly, the 6th Circuit determined that Harris was incapable of performing the essential functions of a resale buyer because of the need for interaction in the role.

The Court additionally found that Harris had a poor performance record and noted that she had three previous separate trial runs of telecommuting at Ford, all of which were unsuccessful because she could not maintain a predictable and regular schedule.  Essentially, the Court found that predictable and regular on-site attendance was an essential function for the position of a resale buyer.

The latest (and final) 6th Circuit opinion in this case is a significant one for employers everywhere – even outside the states covered by the 6th Circuit.  As we previously discussed when we wrote about the case, the first opinion really opened up the door for telecommuting to be considered more often as a reasonable accommodation for employees, and didn’t seem to have a great regard for the realities of when it’s truly necessary to be physically present at the workplace.  The full 6th Circuit decision restores that balance and seems to recognize that there indeed are times when an employee is unable to do his or her job from home.  Of course, accommodation situations are delicate and should be judged on a case-by-case basis.  If you have any uncertainty as to how to handle one, seeking competent counsel is probably advisable.

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