Submitted by Terry Fox
Since the dawn of the Americans with Disabilities Act in 1990, employees have argued that they should be able to work from home. That argument has been soundly and routinely rejected by the courts. However, with the adoption of amendments in 2008, focus has shifted from whether the disability was covered to whether there has been attempted accommodation.
The United States District Court for the Southern District of Ohio ruled on July 30, 2012, that a request for telecommuting was not per se unreasonable. Core v. Champaign County Board of County Commissions, Ca.No. 3:11-cv-166. In the case, a county employee in a jobs and families services office started experiencing severe asthma symptoms in 2008 when working close to other employees. She attributed the breathing difficulty to others wearing Japanese Cherry Blossom perfume. Once that issue was raised, Ms. Core’s co-workers began mocking her on Facebook posts and apparently intentionally wore that perfume resulting in her hospitalization.
Following the hospitalization, Ms. Core’s lawyer and the county’s lawyer attempted to negotiate a reasonable accommodation. Telecommuting was suggested. The county refused and the employee sued. The court reviewed the employee’s complaint allegation that telecommuting would be a reasonable accommodation and did not reject it as legally unreasonable. The Core court relied on language from the case of Vande Zande v. Wisconsin, 44 F.3d 538 (7th Cir. 1995), wherein the court noted it would take a very extraordinary case to create a triable issue of an employer’s refusal to let an employee work at home. The court in Vande Zande predicted that sometime in the future technological advances would make it practical for employees to work from home. Apparently, that time is now here, because the court in Ms. Core’s case let the matter go forward for determination by a jury.
The “take away” from the Core v. Champaign County Board case is that employers will face mounting challenges from employees who claim to be disabled and would like to work from home. Employers should be very careful in drafting job descriptions to specify factors requiring appearance within a work setting, like the need to work closely with others and interact face-to-face with customers, to maximize defensibility when an employee seeks to telecommute to accommodate a claimed disability.
Note: If you would like to know more about setting appropriate policies for telecommuters, please see our previous post “Developing the Remote Workforce” by Julie Proscia.