Suppose an accommodation you’ve provided for a disabled employee isn’t working out. How far must you go to find a new accommodation? And do you have to consider telecommuting as an alternative? A recent Ninth Circuit Court of Appeals decision zeroes in on these questions. And we’ll suggest ways to manage the accommodation process to help avert lawsuits.
Chronic Absenteeism Caused By Obsessive-Compulsive Disorder
Carolyn Humphrey was a medical transcriptionist for Memorial Hospitals Association. She was chronically tardy and sometimes didn’t make it into work because she engaged in a series of obsessive rituals, including up to three hours of repeated hair washing, before she could leave her house. After several disciplinary warnings, Humphrey saw a psychiatrist through Memorial’s employee assistance program and was diagnosed with obsessive-compulsive disorder.
Telecommuting Request Denied
Humphrey met with her supervisor to discuss reasonable accommodations. Humphrey said she would like to continue working, and Memorial agreed to a flexible start-time accommodation. But over the next three months, Humphrey continued to miss work. She then asked to work at home because the first accommodation wasn’t working and she believed that telecommuting would allow her to be more productive. Although the company did have at-home transcriptionists, Memorial said Humphrey was ineligible to telecommute because she was involved in disciplinary action resulting from her absenteeism. After several more absences, Humphrey was fired. She then asked to take a leave of absence rather than lose her job. But Memorial refused, saying Humphrey had already had her chance at accommodation.
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Employee Sues For Disability Bias
Humphrey sued, contending Memorial failed to accommodate her disability. Memorial argued it wasn’t required to permit Humphrey to telecommute or to look for another accommodation unless Humphrey specifically asked for one. The trial court agreed, dismissing the lawsuit. Humphrey appealed.
Telecommuting May Be A Reasonable Accommodation
The Ninth Circuit Court of Appeals reinstated Humphrey’s case. The court explained that working at home is a reasonable accommodation when the essential job functions can be performed there and there’s no undue hardship to the employer. Physical presence at work wasn’t an essential requirement here because the company allowed other transcriptionists to work from home. Plus, Humphrey shouldn’t have been disqualified from telecommuting while undergoing discipline that stemmed from her disability.
Employer Must Explore Alternatives
The court also said Memorial had to explore alternative accommodations, including offering a leave of absence, before terminating Humphrey. Once an employer becomes aware that an accommodation isn’t working, it must consider alternative accommodations and can’t shift the responsibility to the employee to request one. The employer’s accommodation obligation is a continuing duty that isn’t satisfied by one effort.
Handling Telecommuting Requests
This case signals a need to consider telecommuting when it may be an appropriate accommodation. Here are some suggestions for handling these situations:
- Assess job requirements. Whether telecommuting is a reasonable accommodation will depend on the position and the individual. Some jobs can’t be performed away from the office, such as those requiring a lot of teamwork. And telecommuting may not be workable if the employee lacks sufficient experience to work from home without direct supervision.
- Update job descriptions. If you want a job to be performed in the office, make sure the job description reflects your reasons. Consider spelling out that teamwork and on-site training and supervision are necessary to perform the job properly.
- Consider alternatives. If a disabled employee wants to telecommute and you have legitimate reasons for refusing, you can still meet your ADA obligations by offering an alternative accommodation that satisfies the individual’s needs. The employee doesn’t have the right to choose an accommodation.
- Evaluate effectiveness. It’s critical to periodically reevaluate whether an accommodation is working out. If it’s not, you have to explore whether alternative accommodations would enable the employee to perform essential job functions.