Tuesday, August 7, 2012

Telecommuting as a reasonable accommodation

More than two years ago, I hypothesized that the breadth of the ADA’s 2009 amendments would likely cover fringe medical conditions such as chemical sensitivities. I wrote:

The ADA amendments are intended to make it much easier for individuals to demonstrate that they meet the definition of “disability.” To have a disability, an individual must be “substantially limited” in performing a “major life activity” as compared to most people in the general population. An impairment need not prevent, or even significantly or severely restrict, the individual’s performance of a major life activity…. Major life activities include daily functions, as well as the operation of major bodily functions (which would include, for example, the respiratory system).If an employee has a chemical sensitivity to certain smells, that allergy will likely substantially affect the employee’s respiratory system, thus rendering the employee “disabled” under the ADA.

Core v. Champaign County Board of County Commissioners (S.D. Ohio 7/30/12) [pdf], confirms my prediction. In that case, an Ohio federal court ruled that an employee sufficiently pleaded a claim for disability discrimination under the ADA based on an alleged sensitivity to perfume. The plaintiff, Pamela Core, claims that her employer failed to accommodate her chemical sensitivity to certain perfumes worn by her co-workers. She had asked that her employer ban certain scents in the workplace. When it ignored her requests, she asked to be allowed to work from home as an accommodation, which the employer rejected.

The issue of whether a sensitivity to perfume qualifies as a disability protected by the ADA only begs this question—what is the appropriate accommodation for this disability? The court in Core concluded that telecommuting may be a reasonable accommodation in this case:

With regard to the assertion that working from home is an unreasonable accommodation as a matter of law, such blanket assertion is not necessarily supported by Sixth Circuit precedent. Certainly, the Sixth Circuit has agreed with the general proposition that an employer is not required “to allow disabled workers to work at home[;]” however, the court also recognizes the possibility of exceptions to the general rule “in the unusual case where an employee can effectively perform all work-related duties at home[.]”

Certainly, communications technology has advanced to such a state that the proposition of employees working from home is not quite as burdensome or untenable…. Today, in this Court’s view, it may not “take a very extraordinary case for the employee to be able to create a triable issue of the employer’s failure to allow the employee to work at home.” Nevertheless, the ultimate determination of reasonableness is a fact specific inquiry and a question for the fact-finder.

The Court did not go as far to conclude that telecommuting is a proper reasonable accommodation in this or any other case, but instead ruled that a jury should decide the reasonableness of the accommodation in this case.

Some employers, rightly or wrongly, believe that employees need to be present in the workplace to effectively perform their jobs. If you fall on this side of the debate, what steps can you take to safeguard against a court second-guessing your decision to deny a telecommuting request as a reasonable accommodation?

  1. Prepare job descriptions that detail the need for time spent in the office.
  2. Document the cost of establishing and monitoring an effective telecommuting program.
  3. Engage in a dialogue with disabled employees to agree upon an alternative accommodation with which both sides can live.

The appropriateness of telecommuting as a reasonable accommodation will vary from case to case. As Core points out, telecommuting as a reasonable accommodation remains the exception, not the rule. The line that separates exception from rule, however, will continue to shift as technology makes telecommuting more feasible, widespread, and accepted.

[Hat tip: Employer Law Report]