Court Says Telecommuting Might Be a Reasonable Accommodation Under the ADA
A federal court in Ohio has determined that employers must at least consider allowing an employee to work at home when an employee is unable to work in a traditional workplace due to an Americans With Disabilities Act (ADA) disability.
Pamela Core's Story
Pamela Core, who has severe chemical sensitivities and asthma, began having difficulty breathing where she worked at the Champaign County Department of Job and Family Services (“DFJS”) in Ohio in February of 2008. Her problems were apparently triggered by a particular perfume worn by some of her co-workers, which she identified as Japanese Cherry Blossom perfume. The presence of the perfume in the air at the office caused her to have progressively more severe reactions while at work.
Shortly after beginning to experience symptoms, Ms. Core requested that her employer ask her co-workers to refrain from wearing the perfume, but no action was taken, and Ms. Core’s symptoms continued and grew worse.
Pamela Core Was Mocked by Her Co-Workers
Eventually, Ms. Core’s exposure to the perfume resulted in a trip to the emergency room for treatment for a severe reaction. After Ms. Core’s emergency treatment, not only did some co-workers mock Ms. Core for her reaction to the perfume, but her co-workers continued to come to work wearing the Japanese Cherry Blossom perfume.
Ms. Core maintained that the employees were never even reprimanded for their behavior. Even after two letters from a nurse practitioner to DFJS recommending that Ms. Core’s co-workers be advised of her allergy, and suggesting that her co-workers be asked not to wear the perfume, DFJS failed to take significant action.
The Department of Job and Family Service's Proposed Accommodations
Instead of asking the staff not to wear the perfume, DFSJ asked Ms. Core’s co-workers to refrain from entering her office and to telephone or email instead, and directed Ms. Core to avoid entering her co-workers’ cubicles. Finally, in March of 2010, Ms. Core took a leave of absence and requested that she be granted permission to telecommute as an accommodation for her disability, which was rejected.
Eventually, DFSJ did propose an email to staff requesting that they refrain from wearing the perfume at work and various other options for accommodation, such as allowing Ms. Core to go outside for fresh air as often as necessary. However, apparently having had enough, Ms. Core declined the accommodations as insufficient and narrow and filed a lawsuit.
Requirements Under the Americans With Disabilities Act (ADA)
The ADA requires employers to make reasonable accommodations for employees who qualify as disabled under the ADA. A reasonable accommodation is an accommodation which doesn’t pose what is called an “undue hardship” on the employer.
An undue hardship is created when an accommodation is unreasonable to expect from an employer, such as one which is very difficult or expensive. In other words, an employer is generally required to work with an employee who has a disability to find ways to make the job possible, but the employer doesn’t need to do anything which, when taking into consideration the employer’s particular circumstances, would cause significant difficulty or expense.
Essential Job Functions Need Not be Eliminated
An employer is also not required to eliminate an essential function of a job to make it possible for an employee to perform the job. If an employer can show that a particular function of a job is essential, eliminating it is automatically an accommodation that would impose an undue hardship on the employer.
Some Jobs May Not Require the Employee's Presence in the Workplace
In Ms. Core’s case, DFSJ asserted that working from home is automatically an undue hardship on an employer. The 6th Circuit disagreed. The court said that while there is no general requirement that an employer allow a disabled worker to work at home, there may be exceptions to the general rule that physically coming to work is an essential function of the job.
The 6th District Court has clearly arrived in the present. Although historically it might have been reasonable to hold that inability to physically come to the workplace or to tolerate being in the workplace for other reasons meant that an employee couldn’t perform an essential function of the job, computers and in particular communications technology such as instant messaging and web conferencing have changed all that.