More on Telecommuting as a Reasonable Accommodation

Two months ago, I reported on Core v. Champaign County Board of County Commissioners, which, in denying a motion to dismiss, concluded that the employee’s complaint had sufficiently pleaded the issue of whether the employer’s decision to deny her request to telecommute as a reasonable accommodation violated the Americans with Disabilities Act.

The case involved an employee with an alleged sensitivity to certain perfumes worn by her co-workers. She claimed that her employer unlawfully denied her request to work from home as an accommodation for her chemical sensitivity. In denying the motion to dismiss and allowing the case to proceed, the court concluded that technological advances may make telecommuting an appropriate accommodation in certain cases.

Last week, that same court decided that this was not the right case to recognize telecommuting as an accommodation, and dismissed the employee’s lawsuit on the employer’s motion for summary judgment. On the specific issue of telecommuting, the court ruled as follows:

With regard to Plaintiff’s request to work from home as an accommodation, the Sixth Circuit has agreed with the general proposition that an employer is not required “to allow disabled workers to work at home, where their productivity inevitably would be greatly reduced.” The Sixth Circuit also recognizes, however, the possibility of exceptions to the general rule “‘in the unusual case where an employee can effectively perform all work-related duties at home [.]'”

Here, Defendant points to evidence that Plaintiff’s position … required her to meet with non-employee clients regarding services, inspect and certify in-home daycare facilities, conduct and attend training sessions, input data into a state database only accessible at the … facility, and maintain physical files that are to be restricted to the … facility. Defendant also points to Plaintiff’s own admissions that she cannot perform all of the essential functions of her position at home. Plaintiff points to no evidence rebutting these facts. Accordingly, the Court finds that the requested accommodation that Plaintiff be permitted to work from home is not reasonable.

This decision highlights two important points:

1. It does not take much for an employee to survive a motion to dismiss. A motion to dismiss merely tests the legal sufficiency of the complaint. In other words, reading the complaint in a light most favorable to the plaintiff, does it plausibly state a claim upon which a jury could award relief. It is a preliminary motion brought at the earliest stage of the case. In most cases, it is denied. When denied, it rarely reflects on the merits of the case.

2. While telecommuting as a reasonable accommodation remains the exception, the line that separates exception from rule is shifting as technology makes telecommuting more feasible. If you want to be able to defend a workplace rule that employees work from work, and not from home, consider implementing the following three-step process:

• Prepare job descriptions that detail the need for time spent in the office.
• Document the cost of establishing and monitoring an effective telecommuting program.
• If a disabled employee requests telecommuting as an accommodation, engage in a dialogue with that employee to agree upon the accommodation with which both sides can live (whether it’s telecommuting or something else).

Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.