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Is Workplace Presence an Essential Job Function?
Barry Alan Johnsrud + Michael A. GriffinJackson Lewis P.C. | Seattle
[email protected] | (206) [email protected] | (206) 626-6416
Telecommuting: Hello, It’s Me!
Jackson Lewis P.C. © 2015
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• Highly Valued by Employees
• Flexible
• Inappropriate for some jobs.
• Ability to supervise?
• Productivity?
• Teamwork?
• Hint of fraud exacerbates concerns.
Reining In Telecommuting!
“Speed and quality are often sacrificed when we work from home. We need to be one Yahoo!, and that starts with physically being together. Beginning in June, we’re asking all employees with work-from-home arrangements to work in Yahoo! offices.” February 22, 2013 memo from head of Human Resources at Yahoo!
February 22, 2013 memo from
head of Human Resources at Yahoo!
Jackson Lewis P.C. © 2015
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Telecommuting Has Become the “Norm” for many Employers …
• More than two-thirds of employers allow some employees to telecommute at least occasionally. 2014 National Study of Employers by the Families and Work Institute.
• Some employers have gone to “hoteling” for some jobs; eliminating dedicated offices and providing space as needed. Reduces space saves $$$.
• Bottom line: Trend is toward telecommuting, when the employer determines it is appropriate.
Jackson Lewis P.C. © 2015
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The ADA Telecommuting Analysis
• Is physical presence at the worksite an essential job function?
• Is telecommuting a reasonable accommodation for an employee whose medical condition limits his/her ability to be at the workplace?
Jackson Lewis P.C. © 2015
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Common Sense
• The Eighth Circuit said sixteen years ago:
• “An employee who is unable to come to work on a regular basis is unable to satisfy any of the functions of the job in question, much less the essential ones.”o Moore v. Payless Shoe Source, 187 F.3d 845 (8th Cir. 1999), cert.
den. 528 U.S. 1050.
• Common sense cited as analysis factor in Sixth Circuit enbanc decision in EEOC v. Ford Motor Co., 782 F.3d 753 (6th Cir. 2015), for “highly interactive” jobs.
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Reasonable Accommodation: Definition
“In general, an accommodation is any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities.”
Source: EEOC’s Enforcement Guidance on Reasonable Accommodationand Undue Hardship
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What is an Accommodation?(i) Modifications or adjustments to a job application process that
enable a qualified applicant with a disability to be considered for the position such qualified applicant desires; or
(ii) Modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable an individual with a disability who is qualified to perform the essential functions of that position; or
(iii) Modifications or adjustments that enable a covered entity’s employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities.
29 C.F.R. § 1630.2(o)(1). 8
Examples of Reasonable Accommodations
Reasonable accommodation may include but is not limited to:
(i) Making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and
(ii) Job restructuring; part-time or modified work schedules; reassignment to a vacant position; acquisition or modifications of equipment or devices; appropriate adjustment or modifications of examinations, training materials, or policies; the provision of qualified readers or interpreters; and other similar accommodations for individuals with disabilities.
29 C.F.R. § 1630.2(o)(2).
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Types of Accommodations
• Job restructuring
• Part-time or modified work schedules
• Reassignment to a vacant position
• Leave
• Modification of equipment or devices
• Modification of examinations
• Exceptions to policy
• Assistance with an application
• Accessibility to work and off-site events
• Readers or interpreters
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Types of Accommodations: Terms and Conditions of Employment
• Remember: accommodations are not just about job performance.
• Terms and conditions of employment include things such as training, services (e.g., EAPs, cafeterias, lounges, fitness centers, transportation), parties or other social functions (e.g., retirement parties, office lunches and company outings).
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What is not a reasonable accommodation?
• Removing essential job functions
• Diluting uniformly enforced productivity standards
• Excusing or forgiving past misconduct or poor performance
• Promotion
• Bumping an employee from a job
• Creating another position or job
• Changing an employee’s supervisor (as compared to changing supervisory techniques, which is required absent a showing of undue hardship)
• Hiring a second person as a helper for the disabled employee12
What is not a reasonable accommodation?
• Bumping an employee from a job
• Creating another position or job
• Changing an employee’s supervisor (as compared to changing supervisory techniques, which is required absent a showing of undue hardship)
• Hiring a second person as a helper for the disabled employee (though EEOC opines that temporary “coach” may be reasonable)
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Remote Worksites as a Reasonable Accommodation
• The EEOC has taken the position that a reasonable accommodation may include allowing an employee to work remotely from home.o 29 C.F.R. § 1630.2(n)(3).
o EEOC v. Ford Motor Co., 782 F.3d 753 (6th Cir. 2015).
• While the litigation around this issue is new, it is growing. Here are some tips in understanding the EEOC’s mindset in order to (1) comply with regulations and (2) avoid litigation.
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Three Step EEOC Interactive Process Related to Remotely Working from Home • STEP 1 – Identify and review all of the essential
job functions.
• STEP 2 – Determine whether some or all of the functions can be performed at home.
• STEP 3 – If some job duties must be performed in the workplace, then explore whether working part-time at home and part-time in the workplace will meet both of their needs.
• INVOLVE THE EMPLOYEE IN THIS PROCESS.16
Step 1 – Identifying Essential Job Functions
Simply put – determine what functions/ tasks are essential to the employee
accomplishing the goals of his/ her position.
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Step 1 (Cont’d) – Identifying Essential Job Functions
• Reasons a particular job function is essential (29 C.F.R. §1630.2(n)(2)):o The reason the position exists is to perform that function;
o There are a limited number of employees available among whom the performance of that job function can be distributed; and/or
o The function is highly specialized so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function.
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Step 1 (Cont’d) – Identifying Essential Job Functions
• Factors the EEOC uses to determine whether a particular job function is essential (29 C.F.R. § 1630.2(n)(3)):o The employer's judgment as to which functions are essential;
o Written job descriptions prepared before advertising or interviewing applicants for the job;
o The amount of time spent on the job performing the function;
o The consequences of not requiring the incumbent to perform the function;
o The terms of a collective bargaining agreement;
o The work experience of past incumbents in the job; and/or
o The current work experience of incumbents in similar jobs.
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STEP 2 – What Essential Job Functions Can Be Performed at Home?
• Of the previously determined essential functions, which ones can be done remotely?
• Analyze this issue without desire to have all employees working at the worksite.
• In the eyes of the EEOC and plaintiffs’ attorneys, e-mails, web access, and mobile phones have made face-to-face contact less and less necessary in certain circumstances.
• “An employer should not deny a request to work at home as a reasonable accommodation solely because a job involves some contact and coordination with other employees.” (http://www.eeoc.gov/facts/telework.html)
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STEP 2 (Cont’d) – What Essential Job Functions Can Be Performed at Home?
• Factors to consider when determining feasibility of working at home:o The employer's ability to supervise the employee adequately;
o Whether any duties require use of certain equipment or tools that cannot be replicated at home;
o Whether there is a need for face-to-face interaction and coordination of work with other employees;
o Whether in-person interaction with outside colleagues, clients, or customers is necessary;
o Whether the position requires the employee to have immediate access to documents or other information located only in the workplace.
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Step 3 – Explore Whether Working Part-Time or Full-Time at Home Will Meet Employee’s
and Employer’s Needs.• If the employer determines that some job duties must be
performed in the workplace, then the employer and employee need to decide whether working part-time at home and part-time in the workplace will meet both of their needs.
• While meetings must be done in the workplace, an employee may be able to review documents and write reports from home.
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IMPORTANT KEY TO ASSESSING REASONABLE ACCOMMODAITON
• If there is a reasonable accommodation that can be accomplished inside the workplace that satisfies the alleged need for accommodation, the employer can still require that the employee work in the workplace with that reasonable accommodation.
• The employer need not provide the employee with his/ her preferred accommodation – just a reasonable accommodation that enables the employee to perform the essential functions of her job.
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The Importance of Job Descriptions
The ADA explicitly gives “consideration” to “the employer’s judgment as to what functions of the job are essential.” 42 U.S.C. § 12111(8).
“If an employer has a prepared written description [of the job]…this description shall be considered evidence of the essential functions of the job.”
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Enforcing Company Policy or Performance Standards
Q: Must an employer withhold discipline or termination of an employee who, because of a disability, violated a conduct rule that is job-related for the position in question and consistent with business necessity?
A: No. An employer never has to excuse a violation of a uniformly applied conduct rule that is job-related and consistent with business necessity. This means, for example, that an employer never has to tolerate or excuse violence, threats of violence, stealing, or destruction of property. An employer may discipline an employee with a disability for engaging in such misconduct if it would impose the same discipline on an employee without a disability.
Source: EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the ADA
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Requests for Reassignment
“The ADA may only require an employer to reassign a disabled employee to a position for which the employee is otherwise qualified. An employer may be obligated to reassign a disabled employee, but only to vacant positions; an employer is not required to ‘bump’ other employees to create a vacancy so as to be able to reassign the disabled employee. Nor is an employer obligated to create a ‘new’ position for the disabled employee.” Gile v. United Airlines, Inc., 95 F.3d 492, 499 (7th Cir. 1996).
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EEOC v. Ford Motor Co.
• Employee asked to telecommute “up to four days per week” to accommodate her IBS. Ford denied request.
• District court grants summary judgment to Ford.
• 3-judge panel, in 2-1 decision, reverses summary judgment. Court said that “given the state of modern technology, it is no longer the case that jobs suitable for telecommuting are ‘extraordinary’ or ‘unusual’.”
Jackson Lewis P.C. © 2015
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EEOC v. Ford Motor Co.
• The position: Resale Buyer
• The duties:o Purchase steel from raw suppliers
o Resell steel to Tier I stampers
o Ensure no gap in steel supply
o Respond to shortages
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EEOC v. Ford Motor Co.
• The duties of the position continued:o Respond to changes in specifications
o Problem solving to avoid supply-chain disruption
o Steel industry in turmoil—stampers went under
o Industry consolidations in the stamper business
o Frequent emergency face-to-face problem solving dialogues
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EEOC v. Ford Motor Co.
• This isn’t working out . . .
• New supervisor in 2006, before steel industry crisis of 2007/2008
• New supervisor observed Harris having chronic attendance issues
• Schedule disruptions by supervisor taking over her duties
• Schedule disruptions with co-workers taking over her work
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EEOC v. Ford Motor Co.
• Accommodations attempted
o Late start time on Mondays
o Ad hoc work at home
o Reassignment of time-sensitive projects
o Two “Alternative Work Schedule”/ telecommute periods
• 10-hour days
• X 4 days per week
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EEOC v. Ford Motor Co.
• Performance Results with Initial Accommodationso Unrelated—lowest two ratings in 9 of 11 skill areas
o Considered “argumentative” and did not respond to coaching
o Escalated unnecessary and minor issues (2007)
o Showed noticeable improvement in 2008
o But still in lowest 10 percent of peers (2008)
o In 2009 absent 50 percent of full workdays and 75 percent of all days including partial day absences
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EEOC v. Ford Motor Co.
• The 2009 request for accommodation:o “[allow] me to work up to four days per week from home.”
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EEOC v. Ford Motor Co.
• Interactive Process Stepso April 2009 meeting to discuss the request
o Discussion of the position and how and to what extent Harris could perform her tasks at home
o Request denied following meeting
o Job required regular interactions with team and internal and external Ford contacts
o Spontaneous flow and exchange of information critical to group problem-solving would be compromised
o Harris sought unpredictable schedule
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EEOC v. Ford Motor Co.
• Interactive Process Stepso After denial of work at home, Ford offered alternative
accommodations:• Moving her desk close to the restroom
• Assistance to transfer to a job more amenable to telecommuting
o Harris rejected these options and insisted upon telecommuting up to four days
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EEOC v. Ford Motor Co.
• Performance in Spring 2009o Errors in her work
o Difficulty working together with others
o Burden on her backup buddy
o Untimeliness created supplier frustration• This compounded backup buddy challenges
o Rated a “low achiever” on interim review in 2009 (claimed retaliation)
o Performance improvement plan led to termination in September.
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EEOC Arguments in Ford Motor
• Receptionist, cashier and food server as jobs where location of the work and essential duties are intertwined;
• Proofreader, telemarketer as examples of job where location is not intrinsic to the work;
• Per EEOC: telework is reasonable unless employer can establish that it creates an undue burden, i.e., default is that is it reasonable;
Jackson Lewis P.C. © 2015
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EEOC v. Ford Motor Co. (Analysis)
• Ford Motor provided the court with a thorough understanding of the highly interactive position of resale buyer.
• Because the position required regular attendance, Harris was not a “qualified individual,” and thus could not prove herself a “qualified individual with a disability.”
• Harris admitted she could not perform four of ten main job functions from home.
• Courts do not allow the employee to define essential functions.
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EEOC v. Ford Motor Co. (Analysis)
• Ford Motor successfully distinguished resale buyers who worked one day remote from Harris who wanted up to four days remote.
• The EEOC did not prove its technology argument by its general argument. Claiming technological advances “self evident” did not prove Harris could do her job remotely.
• The courts will defer to the employer’s view of essential functions where written job descriptions are job-related, uniformly enforced and consistent with business necessity.
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EEOC v. Ford Motor Co.
• Summary judgment granted by District Court
• Panel of Sixth Circuit reverses
• Sixth Circuit agrees to review the case en banc (13 judges); vacates panel decision.
• En banc opinion filed April 10, 2015
• In 8-5 decision, Sixth Circuit reinstated summary judgment to Ford.
Jackson Lewis P.C. © 2015
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Why did Ford Motor Co. win on SJ?
• Patience—actions spanned multiple years
• Thoughtful analysis at each step and action accordingly
• Three attempts to make telecommuting work but it failed each time.
• Burden on/disruption to Harris’ co-workers
• Common Sense: highly interactive job requires presence
Jackson Lewis P.C. © 2015
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What EEOC v. Ford Motor Co. does not hold
• Ford Motor does not mean that telecommuting is never a reasonable accommodation.
• Ford Motor does not mean that a company can issue a blanket exclusion of telecommuting.
• Ford Motor does not mean that employers can short-cut the interactive process when addressing telecommute requests.
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Ninth Circuit Approach: Samper v. Providence St. Vincent
• NICU Nurse Monika Samper
• Sought exception to attendance policyo Samper sought unspecified number of absence occurrences
o A single continuous absence was one occurrence even if multiple days or weeks of work missed.
o Accommodation for fibromyalgia (sleep disruption, chronic pain)
o Course of case lasted eight years of attendance problems (2000-2008)
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Ninth Circuit Approach: Samper v. Providence St. Vincent
• NICU Nurse Monika Sampero 2002—informed attendance needed improvement
o Personal difficulties due to a divorce
o 2005 meeting with manager and LOA specialist
o New accommodation: call in when having a bad day, but will reschedule shift to another day
• Providence obtained replacements for the missed days
o 2006—exceeded attendance policy, meeting with management
o New accommodation: scheduling two shifts per week—not on consecutive days
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Ninth Circuit Approach: Samper v. Providence St. Vincent
• NICU Nurse Monika Sampero 2006—exceeded attendance policy, meeting with management
o New accommodation: scheduling two shifts per week—not on consecutive days
o 2008—corrective action for seven unplanned absences
o Position elimination (part time): transfer or termination
o Corrective action notices for inappropriate comments on the nursing floor
o Missed a final meeting to discuss absences
o Terminated for seven absence occurrences and generally bad attendance
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Ninth Circuit Approach: Samper v. Providence St. Vincento Regular attendance is an essential function of NICU Nurse
position
o One who is not at work, by common sense analysis, cannot be qualified
o Nice collection of several cases concluding attendance is essential
o NICU position requires presence and constant vigilance
o Face-to-face interactions with patients, families, doctors
o Short staffing results in hardship to other nurses and team
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Ninth Circuit Approach: Samper v. Providence St. Vincent
• NICU nurses highly trained and difficult to replace
• Samper’s proposal amounted to an “open-ended schedule that would allow her to come and go as she pleased.”
• Court described Providence’s effort to accommodate as “Herculean” under the circumstances
• Samper v. Providence St. Vincent, 675 F.3d 1233 (Ninth Cir. 2012).
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Other Courts in Washington and the Ninth Circuit Will Likely Hold the Same
• Alexander v. Boeing Co., 2014 U.S. Dist. LEXIS 102735, 30-31 (W.D. Wash. July 28, 2014) (denying summary judgment for employer because “[w]ith respect to the interactive process, . . . plaintiff has presented sufficient evidence to demonstrate that a flexible schedule or partial days would have been a reasonable accommodation. Thus, the question of whether Boeing failed to engage in the interactive process with respect to flexible or partial work days is a question reserved for the jury.”)
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