The Sophisticated Employer Blog

On April 10, 2015, the Sixth Circuit Court of Appeals issued its long-awaited en banc opinion in EEOC v. Ford Motor Company. The en banc opinion reversed a previous Sixth Circuit panel decision issued on April 22, 2014, which concluded that telecommuting was a “reasonable accommodation” under the Americans with Disabilities Act (“ADA”) for an employee suffering from Irritable Bowel Syndrome (IBS). 

Background Facts: 

The plaintiff suffered from IBS, which worsened over the course of her employment. On bad days, she could not drive to work or even stand up at her desk without becoming soiled. She used intermittent Family and Medical Leave Act to address her absenteeism. 

In 2005, the plaintiff’s supervisor allowed her to work on a flex time telecommuting schedule, but the plaintiff could not establish a consistent work schedule. She tried to work from home after core hours and on weekends, but Ford viewed this as “casual overtime” akin to that expected of salaried workers and not an acceptable substitute for work during regular hours. Ford believed it was essential for her to be accessible to her co-workers, re-sale team, suppliers and others when issues arose, preferably through face-to-face contact.

In February, 2009, the plaintiff formally requested that she be permitted to work from home on an as-needed basis as an accommodation for her IBS. Although Ford utilized a telecommuting policy that authorized employees to work up to four days per week from a telecommuting site it did not grant her request because it believed she needed to be available for suppliers.  

Subsequently, the plaintiff declined other suggested accommodations proposed by Ford to accommodate her IBS. She was eventually placed on a performance improvement plan, and when she failed to meet those objectives in 30 days, her employment was terminated.   

Procedural History

In August, 2011, the EEOC sued Ford under the ADA, alleging that Ford failed to reasonably accommodate the plaintiff’s disability and terminated her in retaliation for filing her charge. Ford succeeded at the district court level after the court ruled that working from home was not a reasonable accommodation and that Ford established that she was fired for poor performance. The plaintiff appealed and a divided panel of the Sixth Circuit Court of Appeals reversed on both claims. 

Sixth Circuit’s En Banc Opinion

Thereafter, the Sixth Circuit granted en banc review.  In its recently-issued en banc opinion, the Sixth Circuit asked the pertinent question: “Is regular and predictable on-site job attendance an essential function (and a prerequisite to perform other essential functions) of [the plaintiff’s] resale-buyer job?” In a win for employers, it answered: “We hold that it is.”

After a consideration of the facts specific to the plaintiff’s particular job and the Company’s pertinent requirements, the Sixth Circuit concluded that the plaintiff’s proposal of telecommuting up to four days per week removed an essential function of her job and was unreasonable. 

The Sixth Circuit further concluded that the plaintiff failed to perform the essential functions of her job despite Ford’s previous accommodations and that six different made by Ford to accommodate her disability failed because she was unable “to establish regular and consistent work hours” or “preform the core objectives of the job.” The Sixth Circuit noted that “[t]he ADA does not give her a seventh try.” 

Although this decision does confirm that employers have the ability to value regular, on-site job attendance as an essential part of an employee’s performance, it does not mean that telecommuting can never be a reasonable accommodation. As this case demonstrates, analyses of “reasonable accommodations” are highly fact specific. Employers need to ensure that they provide consistent explanations with regard to the “essential job functions” of particular positions.

It is critical to have those job functions specifically noted in writing, and ensure that practices and policies are consistent with those writings.