roadLast year, my colleague Gabe Jiran, had a series of posts on telecommuting as a possible reasonable accommodation. In one post, he reported on a Sixth Circuit decision that allowed an employee (and EEOC) to proceed to trial on claims that the employer, Ford Motor Co., failed to provide a reasonable accommodation to her.

Now, one year later, the Sixth Circuit – upon hearing the matter en banc (or before all of the Circuit Judges, not just a panel of three) — has issued a decision reversing itself. In doing so, it affirmed summary judgment to the employer.  The decision now makes it more difficult for employees to make an ADA claim on the issue of telecommuting as a reasonable accommodation.

I won’t rehash the original decision here (just read Gabe’s post) but it’s worth noting that the original decision emphasized ideas such as: while attendance at work is still an essential function of most jobs, “attendance” can no longer be assumed to mean presence at the physical workplace; and the “workplace” is anywhere that an employee can perform the job.

The new decision — which is now controlling — basically says “nonsense”: Attendance is essential for most jobs.  “That general rule—that regularly attending work on-site is essential to most jobs, especially the interactive ones—aligns with the text of the ADA.”

The court goes on to state that such a rule is “common sense”.

A sometimes-forgotten guide likewise supports the general rule: common sense. Non-lawyers would readily understand that regular on-site attendance is required for interactive jobs. Perhaps they would view it as “the basic, most fundamental” “activity” of their job.  But equipped with a 1400-or-so page record, standards of review, burdens of proof, and a seven-factor balancing test, the answer may seem more difficult. Better to follow the commonsense notion that non-judges (and, to be fair to judges, our sister circuits) hold: Regular, in-person attendance is an essential function—and a prerequisite to essential functions—of most jobs, especially the interactive ones. That’s the same rule that case law from around the country, the statute’s language, its regulations, and the EEOC’s guidance all point toward. And it’s the controlling one here.

The court rejected the EEOC’s argument that technology somehow changes things. The court states:

Despite its commonsense charm, the EEOC’s appeal to technology ultimately fails to create a genuine fact issue. It is “self-evident,” the EEOC declares without citation to the record or any case law, that “technology has advanced” enough for employees to perform “at least some essential job functions” at home. In the abstract, no doubt, this is precisely right. But technology changing in the abstract is not technology changing on this record. Our review of a district court’s summary judgment ruling is confined to the record. And no record evidence—none—shows that a great technological shift has made this highly interactive job one that can be effectively performed at home. The proper case to credit advances in technology is one where the record evinces that advancement. There is no such evidence here.

In fact, the evidence here shows the opposite: technology has not changed so as to make regular in-person attendance marginal for this job. Ford uses “fairly limited” video conferencing and “tend[s] more towards audio conferencing.” Harris also testified that she used email and her computer. These technologies—email, computers, telephone, and limited video conferencing—were equally available when courts around the country uniformly held that on-site attendance is essential for interactive jobs. The extra-record changes in technology, like Harris’s testimony and her coworkers’ practice before it, therefore do not create a genuine issue of fact as to the essential nature of regularly and predictably attending work on-site. Summary judgment remains proper.

Jon Hyman thinks the decision “stinks” for those who advocate workplace flexibility.  I don’t necessarily see it that way.  Rather, I think the Sixth Circuit — rather sensibly — said that while telecommuting can still be an option for jobs, it isn’t going to be the right solution for all jobs.

Indeed, in this particular case, the court notes that the employer did afford the employee flexibility.  “Three times Ford allowed Harris to telecommute on an as-needed basis (on flex time, no less). And three times Ford developed plans to improve her attendance. But all six efforts failed because Harris proved unable “to establish regular and consistent work hours” or “perform the core objectives of the job.” The ADA does not give her a seventh try.”

For employers in Connecticut, the case isn’t controlling, but it should provide some substantial guidance in this area.  The Second Circuit has indicated that such decisions should be made on a case-by-case basis.

Employers should understand that telecommuting remains an option for accommodating employees with a disability in some instances.  But employers are free to still propose other reasonable accommodations that allow the employee to perform the essential functions of the job. That may mean some additional schedule flexibility or something else.