The answer like the majority of questions in HR is “It depends” as articulated in an article by Daniel Schwarz of Jackson Lewis in his discussion of the case Hostettler v. College of Wooster, in the 6th District Court of Appeals (Ohio.)
According to Schwarz, the employee in question was suffering from recovering from postpartum depression and separation anxiety after the birth of her child. Covered by the ADA in this situation, the employee’s doctor believing the employee was suffering from “one of the worst cases of separation anxiety” that he had seen, provided a restriction that the employee return on a part-time basis only, working a total of two or three days a week. She was employed in HR. Her supervisor accepted the restriction but suggested a half-day schedule five days a week. The employee agreed and returned to work. She was given good performance reviews and was even told she was a great addition to the HR team. However, after a couple of months, she produced a document from her doctor saying she needed to continue on that restriction for another couple of months. She was fired the next day. Of course, she sued.
The first court agreed with the company’s claim that “full-time presence was an essential function of the HR Generalist position.” They dismissed the case. However, when the case was appealed the Sixth Circuit Court disagreed and overturned that finding. They found:
…that although full-time presence may well be an essential function of some jobs, it is a fact-specific inquiry and depends on the job. [The employee] was able to point to two employees who had received longer periods of medical leave for non-pregnancy conditions and she presented an affidavit from a co-worker that there were no problems in HR resulting from [her] working part-time and that all the department functions had been fulfilled.
The court concluded, “In sum, full-time presence at work is not an essential function of a job simply because an employer says that it is.” This conclusion is what prompted me to ask the question in the title. In this ADA case, where the employee was getting the work done and no problems were arising by her working half-days in the office, her presence was not necessary. If we as employers are allowing telecommuting, during which the work is getting done, are we not proving that full-time presence is not a necessary requirement of the job. Granted, as the court said, there are some jobs that cannot be telecommuted, such as being a barista at the local Starbucks where an employer can show that attendance is a requirement of the job. But if you are currently allowing someone to perform their job without being on site on a full-time basis because of telecommuting, how can you deny them that opportunity as an accommodation in an ADA case?
The lesson is, be very careful in denying someone an accommodation based on attendance when you have already allowed them to work from home for another reason.