Up-to-date information for employers on topics and issues that may affect workplace operations. The posts are current as of the date of the posting.


by Jennifer Brown Shaw and Katie L. Patterson | The Daily Recorder | Jun 27, 2014

With modern technology, many workers can perform their jobs from alternate locations, such as a home office. So, when is physical presence at the employer’s worksite an essential function of the job? In EEOC v. Ford Motor Co., the Sixth Circuit Court of Appeals answered that question when it held that telecommuting may be a reasonable accommodation for an employee with a disability.

Physical Presence as an Essential Job Function

An employee with a disability is entitled to a reasonable accommodation that will enable the employee to perform the “essential functions” of the job. To determine if a function is “essential,” courts look to the specific circumstances in each case, taking into account factors such as the written job description, the business judgment of the employer, the amount of time spent performing the function, and the work experience of other employees.

Whether physical presence at the employer’s worksite is an essential function varies depending on the job. Historically, even when an employee’s primary job duties have involved working on a computer or communicating via telephone—tasks that could arguably be accomplished at locations other than the employer’s worksite—courts have often accepted that an employee’s physical presence at work is essential for a variety of reasons. For example, courts have held physical presence is an essential function because the employee must work as part of a team, the job requires face-to-face interaction with clients, and the employer must monitor productivity.

The Facts

In EEOC v. Ford Motor Co., the employee, Jane Harris, was a resale steel buyer who suffered from irritable bowel syndrome. Harris requested to work from home four days per week as a reasonable accommodation for her disability. Ford denied the request and argued that her physical presence was essential to her job, but the Sixth Circuit disagreed.

In reversing the trial court’s grant of summary to Ford, the court reasoned that the law must respond to advances in technology and recognize that the “workplace” is anywhere that the employee can perform his or her essential job duties. It pointed out that the vital question was not whether attendance was an essential job function of Harris’s job, but whether physical presence at the Ford worksite was truly essential.

Ford argued that physical presence was essential to the group dynamic of the resale buyer team and facilitated group problem solving. But the court dismissed this argument by noting that advances in technology have mitigated the need for physical face-to-face interactions. Also, Ford allowed other resale buyers to telecommute.

Ford also argued that Harris’s request to telecommute four days per week exceeded its telecommuting policy. But the court was unpersuaded, finding that Ford had failed to engage in the interactive process with Harris. It never discussed alternatives with her, such as telecommuting less frequently.

Tips for Employers

For employers with significant clerical and office staff, the Ford decision may be particularly impactful. Unlike industries in which physical presence is necessary to get the job done—manufacturing or retail, for example—office environments may lend themselves to telecommuting because of the ease with which employees can use computer, telephones, and other technologies to do their jobs away from the workplace.

To clearly establish expectations in advance, an employer should ensure its job descriptions accurately reflect the job’s requirements, including whether physical presence is an essential function. Of course, this position is strongest when an employer articulates clear, legitimate reasons for requiring an individual’s presence, and when the nature of the work truly does require it.

Also, an employer with a telecommuting policy should use the policy to develop clear expectations about employee performance and behavior when working outside the office. For example, the policy should specify expected work hours for nonexempt employees, identify the specific location from which the employee will telecommute, and explain requirements for reporting absences. Even if an employer must deviate from the policy as part of the reasonable accommodation process (for example, by allowing an employee with a disability to telecommute more frequently than other employees), a clear policy will establish baseline expectations.

Moreover, if an employee with a disability requests telecommuting as a reasonable accommodation for a disability, an employer need not grant the request immediately. While the employer must engage in the interactive process, it may also consider alternatives to telecommuting such as alternate work hours or modifications to the work environment, if those alternatives would be effective.

Finally, if telecommuting is the only effective accommodation, an employer may still hold the employee to the same attendance, scheduling, and performance expectations. Any deviations from these regular workplace standards should be discussed as part of the interactive process.