6th Circuit Vacates Ruling That Telecommuting Is Reasonable Accommodation

A federal appeals court has vacated and agreed to rehear a recent opinion in which it held that permission to work from home can be a reasonable accommodation required by the Americans with Disabilities Act.

In the now-vacated ruling, the 6th U.S. Circuit Court of Appeals departed from its precedent that “attendance” is almost always an essential job function. In Equal Employment Opportunity Commission v. Ford Motor Co., No. 12-2484 (6th Cir. April 22, 2014), it held that changes in technology have rendered attendance nonessential at many jobs because a “workplace” is anywhere that an employee can perform her job. (For the full description of the case, see Telecommuting Can Be a Required Reasonable Accommodation, Says 6th Circuit.)

The opinion included a dissent from Judge David W. McKeague, who argued that the court should have found the employee in question unqualified because the U.S. Equal Employment Opportunity Commission failed to show that she could perform the essential functions of her job while telecommuting on an unpredictable schedule, he said. McKeague also called the court’s observation that technology has changed “unconvincing.” In fact, the court held that attendance was an essential function as recently as 2012, he said.

Rather than applying well-established standards, the majority departed from precedent and failed to credit the overwhelming, uncontroverted evidence offered by Ford, he concluded. “[C]ompanies will respond to this case by tightening their telecommuting policies in order to avoid legal liability, and countless employees who benefit from generous telecommuting policies will be adversely affected by the limited flexibility,” McKeauge wrote. “I find this outcome regrettable.”

Now, the case will be placed back on the court’s docket and heard en banc — with all of the court’s judges, instead of the usual three. “A majority of the Judges of this Court in regular active service have voted for rehearing of this case en banc,” the court said. “Sixth Circuit Rule 35(b) provides as follows: ‘The effect of the granting of a hearing en banc shall be to vacate the previous opinion and judgment of this court, to stay the mandate and to restore the case on the docket sheet as a pending appeal.’”