A recent Sixth Circuit ruling that nixed a U.S. Equal Employment Opportunity Commission suit against Ford Motor Co. shows companies can say no to workers seeking telecommuting arrangements to accommodate a disability without violating the law, but lawyers warn employers still have to consider telecommuting as a reasonable accommodation depending on the job.
The Court applied a “common sense” approach to decide that “regular on-site attendance is required for interactive jobs, and that “regular, in-person attendance is an essential function … of most jobs….”
Despite advances in technology and remote work and depending on the employee’s job duties, an employee may not be “qualified” within the meaning of the ADA if the employee can’t come to work (as was the case with the Plaintiff and her irritable bowel syndrom). Because the employee in this case was not “qualified,” the majority did not even get to the issue of reasonable accommodation.
The dissent discussed its perception of Ford’s failings in this regard at great length, and in this writer’s opinion, completely disregards all the things Ford did do, focusing instead only on the last proposal from the plaintiff -- that she be allowed to work for “up to four days a week” from home. By the time this came to the table, Ford had worked with her for years as her attendance got worse and her job performance deteriorated.
PRACTICE TIP: Before the issue of accommodations are addressed, the first examination is whether the employee is qualified. Look at your job descriptions and determine whether the essential functions are really "essential." If the functions are not really essential, then denying an employee an accommodation because he or she cannot do them may run afoul of the ADA.
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