Rethinking the meaning of "attendance" and "workplace"

In EEOC v. Ford Motor Company, the Sixth Circuit Court of Appeals offers a lesson to all employers that traditional generalizations regarding attendance and the workplace i.e., that one must be physically present at a specific brick-and-mortar location on a regular basis must be reconsidered in the digital age. The decision also called to my mind events from some 20 years ago that, although not related to disabilities of any employee, might be handled differently today. In the Ford Motor case, the individual represented by the EEOC had irritable bowel syndrome. As her condition worsened over time, she requested that she be permitted to telecommute as an accommodation for her condition. Ford claimed that, "the essence of the job [she held] was group problem-solving, which required that [she] be available to interact with members of the resale team, suppliers and others in the Ford system when problems arose." Management at Ford had made the business judgment that such meetings were most effectively handled face-to-face, and that email or teleconferencing was an insufficient substitute for in-person team problem-solving.' This led Ford to deny the requested telecommuting accommodation. Ford ultimately terminated her employment, reportedly due to excessive absenteeism. In response to litigation predicated upon a violation of the ADA, a district court had granted summary judgment to Ford. Relying on a long line of case determinations to the effect that 'An employee who cannot meet the attendance requirements of the job at issue cannot be considered a qualified individual protected by the ADA,' the district court determined that the individual who couldn't physically be at the Ford plant was not 'qualified' for the job. As to the telecommuting proposal, based upon general rules that courts should not second guess an employer's business judgment on the essential functions of a job, the district court determined that the request to telecommute up to four (out of five) days per week was not a 'reasonable' accommodation (because Ford said so). The Sixth Circuit reversed the summary judgment and sent the matter back to the district court for trial. Over a vigorous dissent, the majority noted that an assumption implicit in the earlier cases holding that 'predictable' and 'regular' attendance in the workplace is an essential requirement was that the 'workplace' is the physical worksite provided by the employer. The majority continued with the observation that technology has advanced to the point today that in the abstract 'attendance at the workplace can no longer be assumed to mean attendance at the employer's physical location.' Rather, said the majority, courts need to recognize that 'the ‘workplace' is anywhere that an employee can perform [his or] 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. The court majority continued that the determination of whether physical presence is essential to a particular job is a 'highly fact specific' question. More than 20 years ago during the 'Floods of '93,' when Des Moines had no water pressure and downtown Des Moines had no electricity, we were kept out of our offices at Dickinson Law for about two weeks. If you called my direct work number during that time, the phone rang in the kitchen of my home. While I answered the phone, in many instances I didn't have the tools necessary (like files) to provide complete assistance to clients. Walking down the halls of our office suite today, I see signs warning us to stay out of all of the offices and conference rooms on the west side of our building because of damage (as yet not repaired) caused by the March 2014 Younkers fire across the street. We were kept out of our office building for two calendar days immediately after the fire, but – with and through security technology and programming beyond my understanding or ability to describe - we still had access to our office phone and messaging system, to our emails, to our document management system, to our various 'legal research' providers – and to our timekeeping and accounting systems. While I still could not access the paper on my desk or in my files, at my otherwise undisclosed location I had most of what I needed, readily at hand, as long as our firm's servers remained operational. The contrast of these two events makes it hard for me to dispute the Sixth Circuit's observation in Ford Motor that technology has, in many instances, changed assumptions implicit in calling something 'the workplace' and in what we can consider to be 'attendance' at work. Iowa employers, it is suggested that you take a careful look at what your expectations may be with regard to 'attendance' and the 'workplace.' While the person who has the job of emptying the bed pan still needs to be present in your building to have 'hands on' the bed pan, how true is that of all of your jobs?  

The material in this blog is not intended, nor should it be construed or relied upon, as legal advice. Please consult with an attorney if specific legal information is needed.

- Russ Samson