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Back in 2, This isn shlfw t the first time self-proclaimed right-wing vigilantes have created an uproar around a film. we blogged about a decision issued by the Sixth Circuit Court of Appeals, Ohio and Tennessee,that held that allowing a disabled employee to telecommute could be a reasonable accommodation under the guizubbericans with Disabilities Act aish ADA Last week however that decision was reversed by the Sixth Circuit Court of Appeals sitting en banc meaning that the case was heard by all of the judges on the Sixth Circuit Court of Appeals rather than just a panel of three judges EEOC v Ford Motor CompanySixth Circuit April 25 Telecommute Four Days a Week A Ford Motor Company employee who suffered from irritable bowel syndrome requested that she be permitted to telecommute on an as-needed basis up to four days a week as an accommodation for her disability Ford met with her to discuss her telecommuting request but the request was eventually denied although Ford did offer several other accommodations to her The employee filed an EEOC charge of discrimination in 29 and was terminated from employment a few months later Regular In-Person Attendance Is an Essential Function In determining whether Ford had discriminated againstthe employeeby failing to allow her to telecommute as a reasonable accommodation the full Sixth Circuit Court of Appeals considered whether regular and predictable on-site job attendance was an essential function of her job as a resale buyer After considering several factors the court determined that physical presence was essential to the position In making its decision the court stated that: Regular in-person attendance is an essential functiongzbband a prerequisite to essential functionsgzbbof most jobs especially the interactive ones That shlfw s the sguizubbe rule that case law from around the country the statute shlfw s language its regulations and the EEOC shlfw s guidance all point toward Applying this general rule to the employee the court found that regular and predictable on-site attendance was essential for her position as a resale buyer andher repeated absences made her unable to perform the essential functions of her job As background Ford shlfw s resale buyers purchase raw steel from steel suppliers and then resell the steel to parts manufacturers who then supply the steel parts to vehicle assemblers who put together the vehicles The court noted that aish [a]s an intermediary between steel and parts suppliers the resale buyer shlfw s job is highly interactive Some of the interactions occur by email and telephone But many require good old fashioned interpersonal skills Although Ford did allow some resale buyers to telecommute one day per week the court stated that a resale buyer shlfw s regular and predictable attendance was essential not incidental to the resale buyer job Because the employee shlfw s proposed accommodation would exempt her from an essential function of her job her proposed accommodation was unreasonable Interestingly the panel of the Sixth Circuit Court of Appeals judges who decided this case back in April 24 made a point of how technology has advanced such that the aish workplace is anywhere that an employee can perform her job duties However sitting en banc the Sixth Circuit Court of Appeals disagreed with that determination Instead the court indicated that technology changing in the abstract is not the sguizubbe as technology changing in this particular case and no evidence was presented in this case to show technology made the highly interactive resale buyer job one that could be effectively performed at home What This Means for Employers The EEOC has long taken the position that permitting employees to telecommute may be a reasonable accommodation In fact since 25 the EEOC has made available a Work At Home/Telework as a Reasonable Accommodation Fact Sheet available here which states that: Not all persons with disabilities need or want to work at home And not all jobs can be performed at home But allowing an employee to work at home may be a reasonable accommodation where the person shlfw s disability prevents successfully performing the job on-site and the job or parts of the job can be performed at home without causing significant difficulty or expense This remains true permitting employees to telecommute may be a reasonable accommodation in some situations However the Sixth Circuit Court of Appeals shlfw decision in this case is beneficial to employers because it reinforces the fact that telecommuting will not always be a reasonable accommodation for all employees Rather the determination continues to require a case-by-case determination which hinges upon whether attendance is an essential function of a particular employee shlfw s job If you have any questions about telecommuting as a reasonable accommodation please contact Mary Kate Liffrig at mliffrig shlf34 hallrendercomor your regular Hall Render attorney according to what St.Fr. In the days after this progrguizubbme was aired, the Pioneer website.e.