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Ford Decision No Green Light To Ban Telecommuting

Law360—Ben James

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.

The appeals court's divided en banc ruling, issued April 10 in an EEOC Americans with Disabilities Act case brought on behalf of a worker with irritable bowel syndrome who wanted to work up to four days a week from home, said regular in-person attendance was an essential function of most jobs and gave employers fighting telecommuting-based failure-to-accommodate claims a new piece of ammunition.

Ford successfully sought en banc review after a 2-1 panel ruling from April 2014 that revived the EEOC's claims and said that advances in technology precluded the assumption that workplace attendance meant showing up at the employer's physical location.

“Given that the court's logic was tied to how technology is changing the workplace, it suggested the beginning of a trend,” Nilan Johnson Lewis PA shareholder Mark Girouard said of the panel decision.

Though the panel decision caused ripples of concern and surprise on the management side, the en banc majority ruling in Ford's favor brought the Sixth Circuit back into line with the rest of the circuits, Girouard added.

The rule that regular on-site attendance is essential to most jobs is consistent with the ADA and supported by common sense, the en banc majority said. The appeal to common sense in the decision will be a hurdle for the EEOC or private plaintiffs pressing similar ADA claims in the future, Girouard said.

Though the en banc majority couched its decision in “common sense” and ruled that there was “no genuine dispute of material fact on this record,” the case split the reviewing judges 8-5 and the 20-page majority ruling was followed by a 22-page dissent.

“If it takes 40 pages to say there's no dispute, then maybe there is,” said Outten & Golden LLP attorney Paul Mollica.  

The en banc decision is positive from an employer's perspective because workers have to be able to perform the essential functions of a job — with or without a reasonable accommodation — to fall under the ADA's protections against employment discrimination. 

But the ADA also calls for an interactive process to look for a reasonable accommodation that will enable a disabled worker to do their job. While the April 10 decision came down on Ford's side, even in the Sixth Circuit courts can still find that telecommuting is a reasonable accommodation in cases where the facts differ from those in the Ford case, Mollica said.

The EEOC's case involved a “resale buyer” position that Ford said required face-to-face interaction and responsibilities that allegedly couldn't be done from home.

“What management was concerned about was that the original Sixth Circuit panel opinion was going to put the thumb too much on the scale for the side of telecommuting, and the majority seems to have righted that,” Mollica said. “But they didn't adopt any kind of a hard rule that would prevent an employee today for asking for telecommuting as a reasonable accommodation.” 

Employers can't just assume a work-from-home arrangement is off the table if a worker asks to telecommute to accommodate a disability, Girouard said. Rather, they still need to “take a hard look at the job” and determine if a physical presence at work is genuinely integral, though in most cases the answer will be yes,  he said.

“The ADA still calls for that case-by-case, fact-intensive inquiry and the inquiry really has to be: Is this a job for which attendance really has to be an essential function?” he said.

And though the Ford case went in the employer's favor, that won't dissuade the EEOC from bringing claims if the workplace bias watchdog feels employers are denying telecommuting-based accommodations that would be reasonable.

“The telecommuting issue has been a hot-button issue for the EEOC for some time, and I can see them continuing to push on this issue,” Girouard said.

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