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Employer Must Prove Physical Presence in Workplace is Essential Function, Sixth Circuit Rules

Likely making it easier for employees to telecommute from home as an accommodation under the Americans with Disabilities Act, the U.S. Court of Appeals for the Sixth Circuit, 2-1, has determined that “attendance” is no longer synonymous with physical presence in the workplace. EEOC v. Ford Motor Company, No. 12-2484 (6th Cir. Apr. 22, 2014). The Sixth Circuit has jurisdiction over Kentucky, Michigan, Ohio, and Tennessee.

In this case, a buyer, Jane Harris, requested that she be allowed to work from home when necessary to accommodate her severe irritable bowel syndrome (IBS), which sometimes made it difficult for her to stand without soiling herself. The employer, which had allowed other buyers to work from home on a more limited basis, refused her request, in part because of the expected frequent nature of the need to work from home. The employer determined that being in the office was an essential function of the job due to the emphasis placed on teamwork and in-person team problem-solving. 

The district court concluded that Harris’s proposal was not reasonable under the ADA and granted summary judgment to the employer. 

The Sixth Circuit, however, determined that there was an issue of fact as to whether the request to work from home was a reasonable accommodation under the circumstances. With advances in technology, the Court stated, the workplace can be anywhere that an employee can perform his or her job duties. In this case, because the Court found evidence in the record that much of the work could be done over the telephone or by video conference, and other buyers had worked from home, the Court allowed the plaintiff to proceed with her ADA failure-to-accommodate claim.

Judge David W. McKeague dissented from the majority’s opinion. He pointed out that “the stated law of this circuit ... is that attending work on a regular, predictable schedule is an essential function of a job in all but the most unusual cases, namely, positions in which all job duties can be done remotely.” (Emphasis in original.) Judge McKeague also noted, “The majority further holds that an employee’s flat-out rejection of an employer’s offer to help her find another position does not constitute an alternative reasonable accommodation, despite the fact that the reason talks could not evolve to a point of identifying a specific position was because of the employee’s refusal to consider the possibility.”

Following the Sixth Circuit’s decision, employers can expect to receive more requests to work from home. The Court recognized that telecommuting is not as unusual as it once was. However, it also recognized that plenty of jobs still require physical presence where the employee must interact directly with people or objects at the worksite. Employers who want to insist upon physical presence in the workplace should expect to prove the unreasonableness of a work-from-home request under their particular circumstances. It is essential employers plan for this eventuality now. The reasonableness of the request will depend upon the job requirements, written job descriptions and realities of the position. Employers should be prepared to identify the job requirements that cannot be performed remotely. 

Further, employers who must accommodate an employee should plan for the related employment issues that go along with working from home, including tracking hours for non-exempt employees, monitoring employee productivity and performance remotely, and maintaining data privacy and security of sensitive company and client information when this information is accessed remotely or maintained at an employee’s residence.

Jackson Lewis Shareholder Joseph J. Lynett, a member of the Disability, Leave and Health Management group observes, “Employers have long considered that ‘being there’ was a fundamental attendance requirement and important to effectively perform the job.  The Court’s decision plainly calls into question this time-honored view of work.”  Lynett recommends that employers “drill down more than ever on these requests during the ADA’s interactive process, gathering all the relevant circumstances, to defend, if necessary, why the request to telecommute was not granted.  Employers also should update job descriptions to confirm the importance of presence in the workplace to perform certain jobs, as well as update telecommuting policies.”

Jackson Lewis P.C. © 2019

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Patricia Anderson Pryor, Class Action, Litigator
Principal and Office Litigation Manager

Patricia Anderson Pryor is a Shareholder in the Cincinnati, Ohio office of Jackson Lewis P.C. Ms. Pryor is an experienced litigator in both state and federal courts, representing and defending employers in nearly every form of employment litigation, including class actions.

She represents and advises employers in federal and state administrative proceedings, in all forms of dispute resolution, including mediation and arbitration, and in managing all aspects of the employment relationship. She has represented...

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Joseph J. Lynett, Jackson Lewis, educational institutions lawyer, disabled students litigation attorney
Principal

Joseph J. Lynett is a Principal in the White Plains, New York, office of Jackson Lewis P.C. His practice focuses on assisting employers, businesses, and educational institutions in meeting the legal and practical challenges posed by federal and state laws protecting injured and ill employees, as well as disabled students and members of the public.

Mr. Lynett defends employers, business and educational institutions in federal and state courts and before administrative agencies, including the U.S. Equal Employment Opportunity Commission, New York State Division of Human Rights, the New York City Commission on Human Rights, and the U.S. Departments of Labor and Education involving claims of disability discrimination arising under federal, state and local law, including Title I and III of the Americans with Disabilities Act, Section 504 of the Rehabilitation Act and the Family and Medical Leave Act, and analogous state and local disability discrimination and public accommodation laws.

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Marlo Johnson Roebuck, Jackson Lewis Law firm, Labor Employment Attorney
Office Managing Principal

Marlo Johnson Roebuck is the Office Managing Principal of the Detroit and Grand Rapids, Michigan, offices of Jackson Lewis P.C. She represents employers on the myriad of laws governing the workplace, including but not limited to Title VII, the Age Discrimination in Employment Act, and the Americans with Disabilities Act.

With almost two decades of legal experience, Ms. Roebuck's representation includes employment advice and counseling as well as employment litigation. She has successfully represented employers in the health care, financial and professional...

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