248-409-1900 dburke@mi-worklaw.com

By:  Bill Pilchak – 4/14/15

          On July 3, 2014, this Blawg informed readers of the 6th Circuit’s decision in EEOC v Ford Motor Co., which held that given the modern technology now available, telecommuting may often be a reasonable ADA accommodation. Before EEOC v Ford, many opinions held that:

  • Regular and predictable attendance and physical presence in the workplace were essential functions of the job;
  • Jobs often require face-to-face interaction with clients and co-workers;
  • A request to work from home was unreasonable where “productivity inevitably would be greatly reduced;”
  • “Except in the unusual case where an employee can effectively perform all work-related duties at home, an employee who does not come to work cannot perform any of his job functions, essential or otherwise.”
  • Telecommuting prevented the remote employee from interacting with other team members.

Fortunately, the entire 6th Circuit agreed to review the 2014 decision en banc, which means that all judges of that court reviewed the case. Even more fortunately for employers, on April 10, 2015, the court reversed and thus voided the 2014 opinion.

One of the points we made in July, 2014 was that: “We find that accommodation issues seldom occur with an excellent employee with a legitimate disability; Too often, marginal or even troublesome employees claim disabilities to avoid discipline or be excused from undesirable aspects of a job.” Thus, not surprisingly the 2015 decision notes that the employee at issue, Jane Harris, a steel resale buyer (from steel companies to stamping plants) “was, on the whole, subpar,” that she placed in the bottom 22% of her peer group in 2007, the bottom 10% in 2008, and her performance got worse thereafter. She also missed 1.5 work days per week in 2008 and was absent more than she was present in 2009.

Another point made in our July Blawg was that “a [telecommuting] policy should provide telecommuting as an option only for employees with a demonstrated objective record of exemplary performance, attendance or significant length of service, to prevent abuses by untried or marginal employees.” Thus, it is significant that the 6th Circuit, after noting three attempts to accommodate Harris through some telecommuting observed that Ford’s policy stated that those who were not strong performers and had poor time-management skills were not “appropriate for telecommuting.”

The policy also limited telecommuting for buyers to a maximum of one day per week because of the need for face to face contact. Ford had evidence of that need for personal interaction:   For years, the resale buyers had to work in the same buildings as stampers to facilitate teamwork, meetings with suppliers and stampers, and on-site availability to participate in face to face interactions.

The 6th Circuit rejected the EEOC’s argument that allowing scheduled telecommuting one day per week for some employees means other employees like Harris can demand to telecommute 80% of the week according to their own schedule, noting that if such were the rule, companies would no longer accommodate 1 day per week telecommuting to avoid that precedent.

The en banc decision reaffirms the rationale that employers have relied upon in denying telecommuting in the past. “An employee who does not come to work cannot perform any of his job functions, essential or otherwise.” “[M]ost jobs require the kind of teamwork, personal interaction, and supervision that simply cannot be had in a home office situation.” Totally squelching the 2014 decision, the 2015 decision firmly holds that “[r]egular, in-person attendance is an essential function – and a prerequisite to essential functions – of most jobs, especially the interactive ones.”

The 2015 decision makes an important proclamation discounting testimony from plaintiff-employees that he/she could work from home, noting that if such testimony created a legitimate question of fact, every accommodation case would go to trial, since all plaintiffs feel they can do the work with accommodation.

As to the “technology” cited by the 2014 decision, the en banc panel said that no evidence of such technology was in the record of the case. Conversely, this panel noted that e-mail, telephone conferencing and limited video conferencing were as available during the plethora of 1994-2012 decisions holding that personal presence is usually an essential function as it was in 2014.

Although the 2014 opinion is now null and void, it is worth remembering this nugget from that decision: “requests for flex time schedules may be unreasonable because businesses cannot “operate effectively when their employees are essentially permitted to set their own hours.”

Finally, our July, 2014 recommendations for telecommuting policy and practices bear repeating, with the addition of the following italicized point from the new decision:

  • Any written policy should provide telecommuting as an option only for employees with a demonstrated objective record of exemplary performance, attendance or significant length of service, to prevent abuses by untried or marginal employees.
  • Require measures to assure the employee is actually working the promised hours, such as:

o   To check in by e-mail to the supervisor when the employee is commencing work, taking time off for meals, medical treatment or inability to work and when finishing work;

o   To be available by land-line phone, if one exists in the home and to have immediate access to data sources during calls. (A cell phone call taken on the beach is often useless to the employer, and unfair to co-workers.)

o   Alternatively, consider requiring connections through video options such as Skype, Gmail video chat, Go-To-Meeting, etc., so the employee’s location is apparent.

o   Require timely responses to supervisor and co-worker e-mail and voicemail messages during regularly scheduled hours, to assure the employee continues to be a resource to the staff at HQ.

For example, ten reports per week. The ADA permits employers to maintain production standards, even:

  •  Require some in-office time, so intellectual capital can be shared, and training can be imparted to juniors. Departmental meetings, required presentations, working lunches and the like are probably good tools for assuring some in-office time. Moreover, require that individuals telecommuting on a particular day come to the work location if circumstances require their presence, as determined by their supervisor.