Wednesday, April 30, 2014
The Sixth Circuit recently weighed in on whether physical presence is an essential function of a job under the Americans with Disabilities Act. E.E.O.C. v. Ford Motor Co., 2014 WL 1584674 (6th Cir. 2014). The district court had granted summary judgment in the employer’s favor, holding that the plaintiff could not establish a failure to accommodate claim under the ADA because of her absenteeism. The Sixth Circuit reversed the district court.
The decision is interesting on several levels, two of which I will discuss here. First, it separates the question of whether attendance is an essential function from the question of whether physical presence at a workplace is one. The Court noted that courts should consider that while physical presence is required for some jobs, it is not required for all positions. It reasoned:
When we first developed the principle that attendance is an essential requirement of most jobs, technology was such that the workplace and an employer's brick-and-mortar location were synonymous. However, as technology has advanced in the intervening decades, and an ever-greater number of employers and employees utilize remote work arrangements, attendance at the workplace can no longer be assumed to mean attendance at the employer's physical location. Instead, the law must respond to the advance of technology in the employment context, as it has in other areas of modern life, and recognize that the “workplace” is anywhere that an employee can perform her job duties. Thus, the vital question in this case is not whether “attendance” was an essential job function for a resale buyer, but whether physical presence at the Ford facilities was truly essential. Determining whether physical presence is essential to a particular job is a “highly fact specific” question.
Id. at *6.
Second, although the Court considered the business judgment of the employer (that face-to-face interaction is desirable for the job), it also considered evidence proffered by the plaintiff that her job did not require such face-to-face contact. The Court held there was a genuine issue of material fact about whether the plaintiff’s job required her to be physically present at the job.
The reach of the opinion is unclear. The Court also noted:
It is important, at this juncture, to clarify that we are not rejecting the long line of precedent recognizing predictable attendance as an essential function of most jobs. Nor are we claiming that, because technology has advanced, most modern jobs are amenable to remote work arrangements. As we discussed above, many jobs continue to require physical presence because the employee must interact directly with people or objects at the worksite. See, e.g., Melange, 482 F. App'x at 84 (custodian). We are merely recognizing that, given the state of modern technology, it is no longer the case that jobs suitable for telecommuting are “extraordinary” or “unusual.” Vande Zande, 44 F.3d at 545; Smith, 129 F.3d at 867–68. When we decided Smith in 1997, we responded to the world as it then existed; however, in the intervening years, communications technology has advanced to the point that it is no longer an “unusual case where an employee can effectively perform all work-related duties from home.”
Id. at *11.