Is attendance at one’s job an "essential function" of the job? That is a critical issue if a worker encounters illnesses and treatment that require time away from work. If everyday attendance is required for every job, then an injured worker who needs time off would not be protected by the ADA. Because, that injured person could not attend work everyday. It is a catch-22. The person needs time off to get better. But s/he would not be entitled to time off, because s/he needs time off. 

Under the amended version of the ADA, we will see more and more accommodation issues. There already is substantial pred]cedent finding that everyday attendance may not be a required function of every job. I previously wrote about some of those cases here

The Sixth Circuit Court of Appeals reversed summary judgment for the employer in one such case, finding that attendance is not always required. In EEOC v. Ford Motor Co., 2014 WL 1584674 (6th Cir. 4/22/14), the district court found that the worker was not a qualified individual with a disability, because of her excessive absenteeism. The lower court then declined to look behind the employer’s claim that everyday attendance was a required function of the job. The lower court would not second-guess the employer’s "business judgment."

The worker, Ms. Harris, had asked to telecommute, that is, to work from home. The higher court rejected an automatic assumption that every job would require daily attendance. The appellate court found that with today’s technology, many workers can be just as productive working from home. The real question, said the higher court, was whether physical presence was truly required at the Ford facility. Physical presence is very much a fact question. Ford argued that Ms. Harris’ physical presence was essential for the group dynamic of the resale buyer team. Teamwork was important, said the employer. 

The Sixth Circuit acknowledged that courts are limited in their ability to judge business needs. But, neither should the court abdicate its responsibility to personnel boards. The courts should not blindly accept the plaintiff’s story. But, the employer’s business judgment is just one more factor in the inquiry. 

The EEOC presented substantial evidence that face-to-face interactions were not always essential. Ms. Harris’ own testimony was that much work was done via teleconferences. Ms. Harris would need to conduct occasional site visits, but Ford’s evidence did not indicate she could not do so from home. And, it appeared that Ford had allowed telecommuting in the past for resale buyers, although for a shorter time frame that requested by Ms. Harris. This would be enough evidence, said the Sixth Circuit, to find genuine issue of factual. If the facts are in dispute, then summary judgment is not proper. The court reversed the summary judgment previously granted by the lower court. See decision here