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Sixth Circuit Rejects EEOC's Demand for Telecommuting as ADA Accommodation

    Client Alerts
  • April 17, 2015
Last year, a panel of the Sixth Circuit Court of Appeals held 2-1 that the Americans with Disabilities Act required Ford Motor Company to allow a buyer with irritable bowel syndrome (IBS) to possibly telecommute up to four days per week as a form of reasonable accommodation. The majority based its decision on Ford’s existing but limited telecommuting policy for all such buyers, and the employee’s testimony that she could accomplish the essential functions of her job from home. The EEOC and court rejected Ford’s contention that the job required regular attendance for the purposes of face-to-face interaction with co-workers.

Last week, the full Sixth Circuit held 8-5 in an en banc decision that the original grant of summary judgment to Ford on the accommodation question was appropriate. In EEOC v. Ford Motor Company, the employee suffered from IBS, and requested to be allowed to work from home as much as four days per week without advance notice of needed absences. Ford presented evidence that the employee’s job requires close coordination with co-workers. Its existing telecommuting policy provided limited flexibility, but not of the magnitude requested by the employee. The EEOC argued that regular attendance is not an essential job function under the ADA, but only a means by which those functions are accomplished. The agency claimed that once Ford made telecommuting an option for other employees, it must extend that option to the plaintiff.

The full Sixth Circuit rejected these arguments. The court did not directly address whether attendance itself constitutes an essential job function under the ADA. The court considered this question irrelevant, because the job required face-to-face communications whether they are considered job functions or prerequisites to job functions. The Sixth Circuit deferred to Ford’s assessment of these job requirements, refusing to give equal credence to the employee’s own assessment of the effect of telecommuting on her job performance. Finally, the court noted the irony of using the existing telecommuting program as the basis for requiring Ford to grant a much expanded accommodation here. It noted that this position could cause employers to entirely eliminate telecommuting in order to avoid this result.

This decision affirms employers’ ability to make reasonable assessments about job requirements without these judgments going to a jury for review. While expanding technology may make telecommuting an option for more disabled employees, the Sixth Circuit confirmed employers’ ability to value personal contact as an essential part of the employee’s performance.