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The AR Group

Is an Employee?s Physical Presence at Work an Essential Function?

By Victoria Aguilar

A recently issued Sixth Circuit decision held that an employee?s physical presence at work might not be an essential function of her job. This decision reversed summary judgment for the employer on the Equal Employment Opportunity Commission’s (?EEOC?) claims that the employer failed under the American with Disabilities Act (?ADA?) to reasonably accommodate the employee?s request to telecommute. In EEOC v Ford Motor Co., the Court found that:

  • The ADA requires a fact-specific inquiry to assess whether the employee can perform the job without being physically present. It noted that factors to consider include: written job descriptions, the employer?s business judgment, analyses of time spent on job tasks, and past and current employees? experience in similar roles.
  • Jobs requiring ?teamwork? are not inherently unsuitable for telecommuting. However, jobs that may not be suitable for telecommuting include those requiring face-to-face contact with colleagues or customers, appearances at the employer?s or customer?s facility, or access to equipment or information only available at the employer?s facility.

The decision has the potential for significantly impacting how businesses may need to anticipate and respond to reasonable accommodation requests since the Court appears to be opening the door to ?modernizing? the concept of attendance. In light of this decision, employers should undertake a critical review of their job descriptions to ensure that they adequately reflect essential functions and align with current technological capabilities, employment practices and business operations. Supervisors should also have training designed to help them recognize prospective ADA accommodation requests. This would also go a long way toward mitigating risk resulting from inadequate consideration of reasonable accommodation requests.

SMART TIP: This decision serves as a strong reminder of the importance of ensuring that an employer?s offer documents are carefully crafted to support the needs of the business. Job descriptions and job postings, as well as the employer?s Employee Handbook, should be adapted anticipating an increase in requests for telecommuting as a reasonable accommodation.