En Banc Sixth Circuit Reverses itself: Ford does not have to offer Telecommuting as an Accommodation Under the ADA

Nicholas Fortuna, April 27, 2015

On April 10, an en banc panel of the Sixth Circuit issued a decision stating Ford Motor Company did not have to grant an employee’s request to telecommute up to four days a week under the Americans with Disabilities Act (ADA), reversing an earlier decision in this case by a three judge panel. Importantly, however, the court did not eliminate telecommuting as a possible reasonable accommodation that employers must consider under the ADA; it only held that in this case Ford did not have to provide it.

The Equal Employment Opportunity Commission (EEOC) sued Ford under the ADA on behalf of Jane Harris, a resale buyer for Ford. The EEOC claimed that Ms. Harris, who had irritable bowel syndrome, should have been accommodated under the ADA and been permitted to telecommute up to four days a week. Ford successfully sought en banc review after 2-1-panel ruling against it in 2014.

The ADA requires an employer to reasonably accommodate a qualified individual with a disability in regard to job application procedures, hiring, advancement, compensation, job training, and other terms and conditions of employment. An employer is said to discriminate under the ADA if it does not make reasonable accommodations to known physical or mental limitations of an otherwise qualified individual with a disability. An employer does not have to make an accommodation if it can demonstrate that the accommodation would impose an undue hardship on the operation of the business.

Such a claim is analyzed under the following framework:

1. The claimant must establish she is disabled;
2. The claimant must be qualified for the position without the accommodation, and without an essential job requirement being eliminated.
3. The employer bears the burden of proving that a challenged job criterion is essential, and therefore a business necessity, or that the proposed accommodation will impose an undue hardship upon the employer.

In the case with Ford, a determinative issue was whether requiring Ms. Harris to be in the same building with other workers was essential to her job function. Ford requires its resale buyers to be in the same location as stampers so they could meet on a moment’s notice. According to Ford, this high level of interactivity and teamwork is why a resale buyer’s regular and predictable attendance in the workplace is essential to being a fully functioning member of the resale team. The Sixth Circuit en banc panel agreed.

The general rule that regularly attending work on-site is essential to most jobs, especially interactive ones, comports with the ADA. Essential job functions are those that in the employer’s judgment are necessary to perform the job, as opposed to “marginal” job functions as defined by the EEOC regulations.  The court will look to how the employer described the job before the litigation began and its policies, and practices as evidence of what is an essential job function.

While the court did not require Ford to offer telecommuting as a reasonable accommodation, it made clear that in other circumstances an employer could be required to offer telecommuting under the ADA. If for instance, Ms. Harris only needed to telecommute one day a week and it was on a specified day, she would likely be entitled to the accommodation because Ford would have been able to rely on her presence on a regular and predictable basis. Alternatively, if a position is less interactive and most of the work is done independently, then telecommuting might be required. Whether an employer must offer telecommuting as a reasonable accommodation will be determined on a case by case basis using the analytic framework discussed above.