A ​“Common Sense” Victory for Employers – The Ford Telecommuting Decision is Reversed

On April 10, 2015, the 6^th Circuit reached what many believe is the right decision and reversed its much–debated decision in EEOC v. Ford Motor Co., 752 F.3d 634 (6^th Cir. 2014) from April 2014 – which had held that Ford had violated the Americans with Disabilities Act (“ADA”) by declining to allow an employee to telecommute (in other words, to work from home), whenever she wished.

Ford petitioned for en banc review of that decision, and on April 10 the panel issued a ruling that effectively gutted the prior ruling.

The panel cut to the core of the issue, by holding that “an employee who does not come to work cannot perform any of his job functions, essential or otherwise,” as “most jobs require the kind of teamwork, personal interaction, and supervision that simply cannot be had in a home office situation.”

We wrote about this case first in our 2014 Employer Express newsletter. Ford employee Jane Harris suffered from irritable bowel syndrome, which she claimed limited her ability to function in the office. She claimed that her symptoms were very severe, claims which Ford did not dispute. After many absences, she asked Ford if she could work from home whenever her illness flared up. Ford offered to accommodate her, but denied that specific accommodation. The biggest problem with her request, according to Ford, was the unpredictability of the telecommuting schedule and the fact that it could keep her out of the office as much as 4 days per week. The company argued that she could not be effective if she was not present at work on a regular basis. There was also evidence that she had other work performance problems, which were not all related to her illness.

She filed an EEOC charge, but the poor attendance continued. She was ultimately fired, and the EEOC brought suit on her behalf.

As the case proceeded through discovery Ford produced evidence that her job required meetings and “teamwork,” which Harris claimed she could accomplish via phone and email. Also, there was evidence that her absences caused stress and anxiety to co-workers and supervisors, who had to “pick up the slack” and perform her responsibilities when she was out of the office.

Ms. Harris disputed this.

Initially, Ford won summary judgment at the district court, which found that her proposal to work from home was NOT a reasonable accommodation.

On appeal, the Sixth Circuit reversed and determined that there were issues of fact on the ADA claim. In a hotly-debated ruling, the Circuit held that – due to advances in technology – one could not assume that physical attendance was a necessary requirement of every job.

The En Banc Reversal

In the recent decision, the full Sixth Circuit reversed, and affirmed the district court’s grant of summary judgment.

In so doing, the Court noted that both the language of the ADA and the EEOC’s regulations supported the conclusion that attendance at work and presence at the work site was an “essential function” of most jobs and that “most jobs would be fundamentally altered if regular and predictable on site attendance is removed.” It also noted that the EEOC’s own guidance confirmed that an employer could refuse a telecommuting request if the job required “face-to-face interaction and coordination with other employees,” or “in person interaction with colleagues, clients or customaries.”

Notably, the Court also soundly rejected the EEOC’s argument that because Ford had allowed some employees to telecommute on a limited basis (1 or 2 set days per week), Ford was required to allow Plaintiff her request to telecommute whenever she wanted, up to 4 days per week.

In this regard, it noted that to make such a finding would harm employers as it would “encourage – indeed, requires – employers to shut down predictable and limited telecommuting as an accommodation for any employee.” This, the Court reasoned, would be wrong as employees would be hurt. Also, it would turn telecommuting into a weapon, and “telecommuting should not be a weapon.”

In closing, the Court held that a “sometimes–forgotten” guide also supported this general rule: “common sense,” and that most non-lawyers would understand that “regular on site attendance is required for interactive jobs.” However, “burdened” by the record and the cases and the various tests, the litigants may have lost sight of this. “Better to follow the commonsense notion that non-judges (and to be fair judges, our sister circuits) hold: Regular in person attendance is an essential function – and a prerequisite - to essential functions of most jobs.”

Conclusion

So, the maligned Harris/Ford decision is history – for now. Employers can once again sleep easy, knowing that they can require their employees to come to work. Or can they?

I am not so sure. First, the EEOC is likely not “done” with this issue. The agency will either seek cert to appeal this decision to the Supreme Court, or pick another unlucky company (some may say victim) and fight its decision to deny a telecommuting request.

That said, at least employers can also now not fear that by adapting a telecommuting policy, as Ford had, and allowing telecommuting on reasonable terms - they are opening themselves up to a claim that every employee should be permitted to telecommute. Employers just need to be clear and consistent in applying the policy, and make sure to explain when a particular position does not lend itself to telecommuting.

For that reason, employers should stay on top of this issue. A few take-aways:

• Job descriptions remain important as the Ford decision confirmed again that job descriptions will be given deference in litigation in defining essential functions.
• Continue to make sure that job descriptions and performance evaluations note whether regular attendance at the work site is essential to the job.
• Make sure that essential functions are clearly and correctly defined in job descriptions and note that it is important for the employee to attend meetings and to interact with colleagues.
• Note that in-person interactions with customers are important.
• Finally, continue to document the interactive process and document the reason why any specific accommodation is denied or granted.