The Employer’s Wage and Hour Advisor

The court held that “[r]egular, in-person attendance is an essential function—and a prerequisite to essential functions—of most jobs, especially the interactive ones.” In effect, telecommuting multiple days per week as an accommodation for these jobs is unreasonable.

This recent decision departed from the earlier holding issued by a three-judge panel of the same court in favor of the EEOC. In a rare move last summer, the federal appeals court vacated that earlier decision so that all of the court’s active judges could rehear the case together.

Upon reconsideration, eight judges found (with six judges dissenting) that the employee’s job as a resale buyer required “regular and predictable” on-site attendance as an essential job function, as well as a prerequisite to perform other essential job functions. Specifically, the job required “teamwork, meetings with suppliers and stampers, and on-site availability to participate in face-to-face interactions.” Evidence showed that Ford’s judgment as to these essential functions was “job-related, uniformly enforced, and consistent with business necessity.” The employee, due to her excessive and unpredictable absences, could not effectively perform these essential job functions even  with  a reasonable accommodation (which telecommuting was not). Thus, she was not qualified for the job in the first place, and Ford was not required to lower its standards or incur undue hardship by removing essential job functions to accommodate her.

This decision is good news for employers whose business invariably depends on employees’ regular and predictable attendance, as well as for employers whose business is carried out most effectively by employees when they are physically present at the work site.