Why attendance doesn’t actually mean physical presence

by Michael Haberman on May 13, 2014 · 0 comments


Telecommuting is increasingly seen as a reasonable accomodation.

Telecommuting is increasingly seen as a reasonable accomodation.

In a case involving the Ford Motor Co., brought by the EEOC, the U.S. District court acknowledged the fact that technology is having an impact on the definitions in the workplace.

Reasonable accommodation

In a case of an employee who had a bowel problem that made it difficult for her to work outside of the house (needed to be near the toilet) the 6th Circuit Court of the U.S. District Court in Ohio ruled that telecommuting can be deemed to be a reasonable accommodation. Ford argued that the employee’s actual physical presence was an essential function of the job she held. The court held that Ford could not prove that physical presence was an essential function. As the court said:

as technology has advanced in the intervening decades, and an ever-greater number of employers and employees utilize remote work arrangements, attendance at the workplace can no longer be assumed to mean attendance at the employer’s physical location. Instead, the law must respond to the advance of technology in the employment context, as it has in other areas of modern life, and recognize that the “workplace” is anywhere that an employee can perform her job duties.”

The court said that they are not rejecting the precedent that actual physical presence is indeed an essential function of many jobs. But let’s face it, the big push in the last decade to telecommuting has often centered around how much and how long an employee can be away from the office. We have developed methods of communication that allow our employees to “attend” a meeting without actually having their butts in a seat. So we should not be surprised when a court says, given the circumstances, telecommuting is a very reasonable accommodation.

Set your standard of “attendance”

The court did not say employers could not require physical presence if indeed it is an essential function of the job. Attaching wheels to a car at Ford Motor Company would certainly require a physical presence that cannot be called in. (At least not yet.) The court only requires employers to actually prove the “essential” nature of that requirement. Jon Hyman, at the Ohio Employers Law Blog, suggested the following three steps to insure proper compliance to the court’s directive:

  1. Prepare job descriptions that detail the need for time spent in the office. Distinguish one’s physical presence in the office against one’s working hours.
  2. Document the cost of establishing and monitoring an effective telecommuting program.
  3. If a disabled employee requests telecommuting as an accommodation, engage in a dialogue with that employee to agree upon the accommodation with which both sides can live (whether it’s telecommuting or something else).

Wise counsel in all of these three steps. Properly followed you can save yourself a lot of headaches on answering your telecommuting questions.

Thanks to Jon Hyman for the inspiration on this post.

Image courtesy of nonicknamephoto / FreeDigitalPhotos.net


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