Folks, I’ve lost track of the number of disability accommodation requests on which I’ve counseled human resources concerning employee requests to work full-time from home. So, when I came across a recent decision from the United States Court of Appeals for the District of Columbia Circuit involving a failure-to-accommodate claim where the employer insisted on a 100% telework accommodation, I read with interest, as we lawyers like to say.
The plaintiff was a “career” employee, having worked for the same employer since 1997. The defendant knew that the plaintiff suffered from severe allergies and had provided him with a workspace that, for years, had accommodated his health needs. But, in 2011, the defendant placed a worker known for wearing heavy perfume in an adjacent cubicle.
Why did the employer do that? And, better yet, why didn’t the employer relocate the fragrant fellow? Both are good questions. Perhaps the employer enjoys the notoriety of becoming the muse for a post on The Employer Handbook.
Predictably, the plaintiff complained. Then, an interactive dialogue ensued to try to accommodate him. The plaintiff really wanted to move to another room—somewhere away from the strong fragrance. The defendant countered by proposing that the employee telework all the time.
While the plaintiff had teleworked from time to time in the past, he didn’t think that his home office setup was good enough for a full-time work-from-home arrangement. Plus, he was concerned that teleworking would impede his ability to collaborate and communicate effectively with his in-office coworkers, so he declined it.
The problem was that the defendant insisted on 100% telework.
Can an employer require an employee to always work remotely as a disability accommodation? Sure, as long as it works. Otherwise, when disputes arise over the efficacy of the accommodation, as with any other purportedly ineffective accommodation, reasonableness becomes an issue for a jury to decide because it is so fact-specific. Here, there was evidence in the record to allow a reasonable jury to find that the telework offer was unreasonable.
The appellate court also underscored that “an employer cannot comply with its statutory obligation to reasonably accommodate a disabled employee by simultaneously violating the employer’s statutory obligation to avoid unreasonably limiting or segregating that same employee” and thereby discriminating against him.
Here’s the takeaway: The law allows an employer to select the accommodation, even if the employee resists. However, there’s a risk if the employer’s choice does not allow the employee to perform the job’s essential functions. If the employee can show that another reasonable one that the employer rejected exists, that employer may have to write a large check.
And read about it here.