Employers Must Consider Telecommuting As Accommodation

Employers are not mandated to allow their employees to telecommute, but they must as least consider the possibility for people with disabilities that prevent them from interacting in a standard workplace, according to a ruling by a federal court in Ohio.

The decision, in Core v. Champaign County Board of County Commissioners, came about after a woman who sought accommodation in her workplace for her extreme chemical sensitivity. First, Pamela Core asked her employer, the country Department of Job and Family Services, to ban from the office a Japanese Cherry Blossom perfume that some of her coworkers were wearing. The perfume triggered an allergic reaction that made it difficult for her to breathe. No action was taken.

Eventually, after being forced to seek medical treatment for her sensitivity, Core went on leave and asked permission to telecommute and do her job from home. The county refused, although it did offer to change its policy to essentially seclude her in her own office at work and only communicate to others via telephone or email.

She sued, and the lawsuit found its way to the District Court. Earlier this month the judges ruled that while the county, and employers in general, aren’t obliged to offer telecommuting as an option to accommodate employees suffering from a disability, they at least have to consider it on a case-by-case basis. “The ultimate determination of reasonableness is a fact-specific inquiry and a question for the fact-finder,” the opinion states.

The court’s ruling probably would have looked very different even a few years ago, thanks to changes to theAmericans with Disabilities Act as well as the continued evolution of communication technologies.

For one thing, Core’s multiple chemical sensitivity might not have even been considered a disability under the old rules. However, in 2009, the ADA law was updated to include much broader language, opening up what could be considered a protected disability and expanding employer responsibilities to accommodate their employees.

“The focus has shifted from what qualifies as a disability,” says Jonathan Hyman, a labor and employment attorney in Cleveland. Under the updated rules, he explains, “it’s fair to assume that most if not all medical conditions are going to be covered as protected disabilities.” Rather than litigate whether a particular malady should be protected by the ADA, enforcement actions are focused on if employers are taking the proper steps to accommodate the disability in question.

The other part of the question is whether telecommuting should be allowed or if it would be a disruption to the workplace.

“Conventional wisdom has always been under the ADA, telecommuting is not a per-se reasonable accommodation,” Hyman says. “It was a very high hurdle for an employee to overcome, that allowing telecommuting work wasn’t an undue burden on the employer.”

One of the precedents the court cited was a 17-year-old decision that noted that while allowing employees to work from home could hinder productivity, changes in technology could better facilitate such an arrangement in the future. The future, it seems, has arrived.

“Technology always takes a role,” says Hyman. “This case took that role one step further and said communication technologies are evolving on an almost daily basis . . . to make a blanket statement that it’s unreasonable for me to allow telecommuting is not going to pass muster anymore. Depending on the particular job, it may be unreasonable, but it’s no longer enough for an employer to just dismiss that outright as unreasonable.”

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